Fci Handling Workers Union vs Uoi & Ors.
2013 Latest Caselaw 3728 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) No. 3256/2010, W.P.(C) 4891/2008, W.P.(C)
              865/2010

%                                                     23rd August, 2013

+      WP(C) 3256/2010 & CM Nos. 6507/10, 6777/10 & 7431/10 (i.5)

FCI HANDLING WORKERS UNION                                  ..... Petitioner

                            Through:      Mr. Sanjiv Bahl, Mr. Chandan Kumar
                                          and Mr. Eklavya, Advocates.

                            Versus

UOI & ORS.                                                  ..... Respondents

                            Through:      Mr. Om Prakash Adv. for R-2 & 3.

                                          Mr. Arvind Nayar and Mr. Vikas
                                          Kumar, and Mr. Zartab Anwar, Advs.
                                          for R-4.

+      W.P.(C) 4891/2008 & CM No. 9394/2008 (Stay) (i.3)

SHREE NATH SINGH & ORS                                      ..... Petitioner

                            Through:      Mr. Arvind Nayar and Mr. Vikash
                                          Kumar and Mr. Zartab Anwar,
                                          Advocates.

                            versus

FOOD CORPORATOIN OF INDIA & ORS                             ..... Respondents

                            Through:      Mr. Om Prakash, Adv. for R-2 and 3.




 +      W.P.(C) 865/2010 & CM Nos.1822/2010 & 5309/2010 (i.4)

BABU RAM NAYAK & OTHERS                                     ..... Petitioners

                            Through:      Mr. Arvind Nayar and Mr. Vikash
                                          Kumar and Mr. Zartab Anwar,
                                          Advocates.



                            Versus

FOOD CORPORATION OF INDIA THROUGH ITS CHAIRMAN-CUM-
MANAGING DIRECTOR & ORS.                ..... Respondents

                            Through:      Mr. Om Prakash, Adv. for R-1 and 2.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?      Yes


VALMIKI J. MEHTA, J (ORAL)

WP(C) 3256/2010 & CM Nos. 6507/10, 6777/10 & 7431/10

1. This writ petition is filed by one of the workers' union of the

respondent no.2/employer/Food Corporation of India(FCI). Petitioner is

called as FCI handling union. Another union is FCI workers' union, and

which is respondent no.4 to this petition. Petitioner seeks quashing of the

circular nos. 7/2006 and 11/2007 dated 23.2.2006 and 20.11.2007

respectively issued by respondent no.2, and also for setting aside of the

Memorandum of Settlement dated 7.11.2007 entered into between the

respondent no.4 and the respondent no.2. In sum and substance, the disputes

are with respect to method of promotion. Before the impugned circulars and

the settlement came into effect, promotion was being effected gang- wise.

After the issuance of circulars and the settlement dated 7.11.2007,

promotions are to be made depot -wise. As a result of implementation of the

impugned circulars, various gangs stand merged in the depots in which they

were working in the respondent no.2.

2. On behalf of the petitioner two principal grounds have been

urged to claim the reliefs as prayed for in the writ petition. First ground is

that the settlement dated 7.11.2007 (and on which the circular dated

20.11.2007 was issued) entered into between the respondent no.4 and

respondent no.2/employer is illegal because respondent no.4-union is not a

majority union and which is required by Section 18(3)(d) of the Industrial

Disputes Act, 1947. For this purpose, reliance is placed by the petitioner

upon para 17 of the judgment of the Supreme Court in the case of

Transmission Corpn., A.P.Ltd. and others Vs. P.Ramachandra Rao &

Anr. (2006) 9 SCC 623. In fact, para-17 of the judgment in the case of

Transmission Corpn. (supra) reproduces the para of an earlier judgment of

the Supreme Court in the case of Barauni Refinery Pragatisheel Shramik

Parishad v. Indian Oil Corpn. Ltd. 6 (1991) 1 SCC 4. The second ground

which is urged is that the settlement dated 7.11.2007 falls foul of Rule 58 of

the Industrial Disputes (Central) Rules 1957 inasmuch as the settlement has

been signed by the Assistant Secretary whereas it could have been signed

only by a President or Vice President or a Secretary or a General Secretary

or any other officer authorized by President and Secretary of the union.

3. On behalf of counsels for respondent nos. 2 and 4, who have

argued a common case, it is pleaded that the writ petition is liable to be

dismissed on the following grounds:-

(i) Petition is barred by delay and laches because the impugned circulars

and the settlement issued in 2006/2007 have been implemented for various

depots in various States up to July, 2008, but this petition is filed only in

May, 2010.

(ii) Alongwith the argument as stated in sub-para-(i) above, the principle

of estoppel is also pressed, and which is a facet of the first argument.

(iii) The writ petition is liable to be dismissed because petitioner has not

come to Court with clean hands because at the time of filing this petition, in

May 2010 and obtaining interim orders petitioner had concealed the facts

that the impugned circulars and the settlement dated 7.11.2007 stood

implemented to quite an extent in various States before the petitioner raised

a dispute under the Industrial Disputes Act in about July 2008.

(iv) Petitioner has accepted, by not challenging, the finality of the

decision of the Government of India, Ministry of Labour, communicated

vide letter dated 15.11.2007, and which was also sent to the petitioner

informing : "Re-organization/merger of Labour Gangs in the Depot is a

policy matter of the Management. Hence, no industrial dispute subsists".

(v) The respondent no.4-union is a majority union, and so stated by the

respondent no.2 in its additional affidavit dated 12.9.2011.

(vi) The provision of Rule 58 cannot be read to frustrate the object of the

rule inasmuch as any office bearer of the union can sign once there are

disputes in the union and elections have to take place, and which is the

position emerging in the present case, because, dispute of elections to the

union-respondent no.4 was subject matter of certain civil suits and appellate

proceedings wherein a retired Judge of this Court was appointed as a Court

Commissioner. While arguing that Rule 58 has to be read as per the

legislative intent, it is argued that the same should be treated as directory and

not mandatory once the settlement is otherwise accepted and not disputed by

the union in question.

4. In my opinion, there is no merit in the writ petition and in fact,

the writ petition is a clear abuse of the process of law. I will now deal with

each of the arguments which have been urged on behalf of the petitioner and

also to the responses/arguments urged on behalf of respondent nos. 2 and 4.

5. Firstly, before referring to the twin arguments urged on behalf

of the petitioner to challenge the settlement dated 7.11.2007 and the

impugned circulars, I hold that the writ petition is liable to be dismissed on

the ground of delay and laches, estoppel and concealment of facts. The

impugned circulars and the settlement which have been challenged are of the

year 2006-2007. Surely a writ petition which is filed in the year 2010 would

be barred by delay and laches as also estoppel because an affidavit dated

18.8.2010 has been filed by the respondent no.2 that the impugned circulars

and the settlement have been implemented in many depots in many States

such as Assam, Andhra Pradesh, Jharkhand, Madhya Pradesh, Nagaland,

Manipur and West Bengal. This was done before July, 2008 when an

industrial dispute was raised by the petitioner in spite of the GOI's letter

dated 15.11.2007. In my opinion, it is not open to the petitioner to contend

ignorance because surely, as workers of the respondent no.2, they knew of

the factum of existence of the impugned circulars and the Memorandum of

Settlement, but yet it did not choose to challenge the same before July, 2008,

and only when, the same was challenged by means of proceedings under the

Industrial disputes Act. Further, it is relevant to note that for the self same

reasons, the petitioner is not entitled to relief by calling upon this Court to

exercise extra-ordinary jurisdiction under Article 226 of the Constitution of

India , and which is also discretionary. The orders of this Court of staying of

the impugned circulars and settlement were obtained in the year 2010 by

concealing the facts with respect to the implementation having already been

effected in various depots in various States. Merely because the circulars

have not been implemented in certain depots of certain States cannot mean

that there is no known concealment of facts, inasmuch as, to the extent of

implementation already done, the petitioner ought to have come clean before

this Court and stated the aspect of implementation and which has admittedly

not been done, besides the fact that implementation in all the depots of all

the States would naturally have taken time i.e it could only be done in a

time-span. This deliberate action of not coming to the Court with clean

hands, therefore, disentitles the petitioner to seek enforcement of

discretionary and extra-ordinary jurisdiction under Article 226 of the

Constitution of India.

6. In my opinion, the writ petition is also barred in law because

the petitioner was undoubtedly sent the letter dated 15.11.2007 by the

Government of India, Ministry of Labour stating that no dispute subsists i. e

no dispute can be raised with respect to reorganization or merger of the

labour gangs. This letter was issued amounting to an order because of the

reason that circular of 2006 by which there was to be reorganization/merger

of labour gangs in the depot was challenged. What matters is the substance

of the challenge and not the form of the challenge. Substance of the

challenge in the writ petition is to stop reorganization/merger of labour

gangs in the depots which was the subject matter of the 2006 circulars. The

fact that the settlement dated 7.11.2007 was subsequently implemented by

issuing of one of the impugned circulars dated 20.11.2007 i. e on a date after

the Ministry's letter dated 15.11.2007 cannot take the case of the petitioner

any further inasmuch as all along the dispute was of reorganization/merger

of the labour gangs in the depots. Therefore, the decision of the Government

dated 15.11.2007 having never been challenged, not even in this writ

petition, and the same having become final, the petitioner is hence legally

barred now from challenging the substance of the said decision of

Government of India dated 15.11.2007.

7. So far as the first argument urged on behalf of the petitioner

that respondent No. 4/union is not a majority union, I find that there is no

such ground which is urged in the writ petition. However, an order as

passed by a learned Single Judge of this Court on 13.5.2011 as to whether

respondent No. 4/union represents majority of the workers, and to this

aspect, and as already stated above, respondent No. 2 has filed its additional

affidavit dated 12.9.2011 clearly stating that respondent No. 4 represents

majority of the workers of the respondent No. 2. Petitioner has not

challenged this statement by filing any reply to this affidavit of the

respondent no.2. Therefore, the argument of the petitioner that the

respondent No. 4/union does not represent majority union of the respondent

No. 2 is rejected. Also it is conceded before me that respondent no.4-union

is a larger union than the petitioner.

8. So far as the second argument which is urged on behalf of the

petitioner is concerned that the settlement in question dated 7.11.2007 has

only been signed by the Assistant Secretary of the respondent No. 4, and not

by the office bearers which is required as per Rule 58, in my opinion, there

has to be a purposive interpretation and such a reading of Rule 58 that the

object of the same is not defeated i.e the Rule 58 therefore is to be treated as

directory and not mandatory. The purpose of Rule 58 is that an authorized

officer of a union should sign the settlement. In the present case, there was

no authorized officer of the union as prescribed under Rule 58 because

disputes had arisen resulting in litigation in civil courts with respect to the

election of the respondent No. 4-union. Therefore, in this scenario, the

Assistant Secretary of the respondent No. 4 signed the settlement and which

is not disputed by the respondent no.4-union. Therefore, I do not find any

illegality, especially so because the respondent No. 4/union itself does not

dispute the finality of entering into of the settlement dated 7.11.2007 and

which was signed by Assistant Secretary at the relevant point of time in view

of the litigation pertaining to the elections of the respondent No. 4.

9. In view of the above, I do not find any merit in the writ petition

which is accordingly dismissed with costs of Rs. 50,000/-. Out of the

aforesaid costs, Rs.25,000/- will be paid to respondent No. 2 and Rs.

25,000/- will be paid to respondent No. 4. Interim orders are vacated. All

pending applications stand disposed of.

W.P.(C) 4891/2008

10. In view of the reasoning given for dismissing W.P.(C) No.

3256/2010, and adopting the same, this writ petition is also dismissed.

Interim orders, if any, are vacated. All pending applications stand disposed

of.

W.P.(C) 865/2010

11. In view of the fact that the W.P.(C) No. 3256/2010 is dismissed

upholding the settlement dated 7.11.2007, and the circulars 7/2006 and

11/2007 dated 23.2.2006 and 20.11.2007 respectively are upheld, learned

counsel for the petitioner accordingly does not press the petition.

Dismissed as not pressed. All pending applications stand disposed of.

AUGUST 23, 2013                               VALMIKI J. MEHTA, J.
ib