Chandrashekar vs The Labour Commissioner
2024 Latest Caselaw 5962 Kant

Karnataka High Court

Chandrashekar vs The Labour Commissioner on 28 February, 2024

Author: M. Nagaprasanna

Bench: M. Nagaprasanna

                           1



Reserved on   : 06.02.2024
Pronounced on : 28.02.2024


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF FEBRUARY, 2024

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.1582 OF 2024 (GM-RES)

BETWEEN:

1.   CHANDRASHEKAR
     S/O LATE CHANNAIAH
     AGED ABOUT 58 YEARS
     WORKING AS DAFTARY
     OFFICE OF THE
     EXECUTIVE ENGINEER (ELE)
     TCD, 5TH FLOOR, KPTCL
     BESCOM CORPORATE OFFICE COMPOUND
     K.R.CIRCLE, BENGALURU - 560 001.

2.   SURESH BABU C.,
     S/O LATE CHIKKANNA
     AGED ABOUT 51 YEARS
     WORKING AS JUNIOR ASSISTANT
     BESCOM, N-1 SUB DIVISION
     RAJAJINAGAR
     BENGALURU - 560 010.

3.   SURESH B. L.,
     S/O LATE LINGAIAH
     AGED ABOUT 55 YEARS
     WORKING AS ASSISTANT ACCOUNTS OFFICER
                            2



     TBC, KPTCL, ANAND RAO CIRCLE
     BENGALURU - 560 009.
                                              ... PETITIONERS

(BY SRI. H.M.MURALIDHARA, ADVOCATE)

AND:

1.   THE LABOUR COMMISSIONER
     DEPARTMENT OF LABOUR
     GOVERNMENT OF KARNATAKA
     KARMIKA BHAVANA, NO. 2
     BANNERGHATTA ROAD
     BENGALURU - 560 029.

2.   THE ASST. LABOUR COMMISSIONER (DLC-2)
     DEPARTMENT OF LABOUR
     KARNATAKA LABOUR INSTITUTE
     2ND FLOOR, MANJUNATHANAGAR
     BAGALGUNTE, BENGALURU - 560 070.

3.   KPTCL EMPLOYEES UNION (659)(R)
     REGD. OFFICE 'A' STATION COMPOUND
     S.C. ROAD, ANAND RAO CIRCLE
     BENGALURU - 560 009
     REPRESENTED BY ITS
     GENERAL SECRETARY
                                             ... RESPONDENTS

(BY SMT. NAVYA SHEKHAR, AGA FOR R1 AND R2;
    SRI. R.S.RAVI, SENIOR ADVOCATE A/W.,
    SRI. B.ROOPESHA, ADVOCATE FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE
R1 AND 2 TO CONSIDER THE REPRESENTATIONS OF THE
PETITIONERS DATED 18/12/2023 AND 19/12/2023 PLACED AT
ANNEXURE-D AND E RESPECTIVELY AND TO ENSURE THAT
                                       3



ELECTIONS TO THE R3 UNION FOR THE YEARS 2024-2026 IS HELD
BY STRICTLY FOLLOWING THE KARNATAKA TRADE UNIONS
ELECTIONS (MODEL) RULES, 1953.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                                  ORDER

The petitioners are knocking at the doors of this Court

seeking a direction by issuance of a writ in the nature of mandamus

to consider the representations of the 1st petitioner dated

18-12-2023 and 19-12-2023 and to ensure that elections to the 3rd

respondent/Karnataka Power Transmission Company Limited

Employees Union ('hereinafter referred to as 'the Union' for short)

for the year 2024-2026 is held strictly in compliance with the Trade

Unions Election (Model) Rules, 1953 ('Model Rules' for short).

2. Heard Sri. H.M. Muralidhara, learned counsel appearing for

the petitioners, Smt. Navya Shekhar, learned Additional

Government Advocate appearing for respondents 1 and 2 and

Sri. R.S. Ravi, learned senior counsel appearing for respondent

No.3.

3. Facts, in brief, germane are as follows:-

The petitioners, who are three in number, are employees of

KPTCL and BESCOM. They are also members of the Union. It is the

averment in the petition that the Union is a registered

representative body of employees who are employed in KPTCL and

five ESCOMS. The Union is said to be registered under the

provisions of the Trade Unions Act, 1926 in the year 1964 when the

employer was the Mysore State Electricity Board. The registration is

continued from time to time and is valid even as on date. The Union

had framed its Rules i.e., KPTC Employees Union Rules and

Regulations and had brought in some amendments thereto from

time to time. In the said Rules a procedure is stipulated to hold

elections for electing the parent body.

4. The Union has three types of representative bodies viz.,

Primary Committee, Local Committee and Central Executive

Committee. The Committees are said to have been formed to

attend the grievances of employees at every level. The Primary

Committee is constituted at the Sub-Division level; the Local

Committee at the Operation and Maintenance Division level and the

Central Executive Committee functions in the head office at

Bangalore. The office bearers to these Committees are elected by

way of election on a secret ballot. The employees in the Sub-

Division level who are members of the Union elect their

representatives to constitute the Primary Committee which

Committee consists of President, General Secretary and six

Executive Members.

5. It is averred that, in the same manner, the employees who

are members of the Union who work at the head quarters of the

Division elect their representatives to the Local Committee

consisting of office bearers. In the same manner the Executive

Committee at the State level is elected by the representatives of

the Local Committees. The term of office of the parent body is three

years and elections would be held at every three years. The last

election that was scheduled to be conducted was in the month of

July 2020. Due to onset of COVID-19, it was held in December,

2020. Therefore, the term of the present body would expiry on

09-02-2024 is the averment and the submission made. What has

driven the petitioners to this Court is the allegation that the Union

is not following the Model Rules. Therefore, the petitioners

submitted two representations - one on 18-12-2023 and the other

on 19-12-2023 seeking consideration of their grievances. Those

having gone unheeded, the petitioners are before this Court for a

mandamus.

6. The learned counsel appearing for the petitioners would

vehemently contend that the Union once having adopted Model

Rules could not act contrary to the said Rules while holding

elections. He would admit that elections in the manner that they

are being held are now being held for the last 30 years. It is his

submission that illegality cannot be perpetuated and, therefore, the

petitioners are before this Court seeking correction to the manner in

which the elections are being held.

7. Per-contra, the learned senior counsel Sri R.S. Ravi

appearing for the 3rd respondent would vehemently refute the

submissions by contending that the Model Rules are only the

guiding light. Once the Rules and Regulations are in place, elections

will have to be held in the manner which is depicted under the

Rules and Regulations. However, elections are not being held for

the last 3 years as depicted in the Rules and Regulations. He would

place reliance upon the judgment of the co-ordinate Bench of this

Court in the case of H.M.T.KARMIKA SANGHA v.

COMMISSIONER OF LABOUR1 to buttress his submission that a

mandamus cannot be issued for holding election in a particular

manner.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

9. The prayer that is sought in the petition though appears to

be innocuous, if granted, in effect would be rewriting the election

rules. The contention of the petitioners is that the Model Rules that

have been adopted by the Union will have to be adhered to.

Therefore it becomes necessary to notice the Model Rules. The

Model Rules insofar as they are germane read as follows:

ILR 1985 KAR 411

"THE KARNATAKA TRADE UNIONS ELECTION (MODEL) RULES, 1953 (As amended by GSR 97, dated 11-03-1968) NOTIFICATION No.LS 2067 LW 201-51-6, dated 18th July, 1953 The following Model Election Rules of Trade Unions are hereby published for information and guidance of Trade Unions for framing their rules under Section 6 of the Indian Trade Unions Act, 1926, the draft of the same having been published in Part-IV, Section 2(C) of the Karnataka Gazette dated 9th April, 1953.

1. These rules may be called the Karnataka Trade Unions Election (Model) Rules, 1953.

2. In these rules, except where the context otherwise requires:

(a) "The Act" means the Trade Unions Act, 1926 (Central Act XVI of 1926)

(b) "Executive Committee" means the executive of the Union consisting of the following office bearers:

(1) President, (2) Vice-President, (3) Treasurer, (4) Secretary, (5) Assistant Secretary.

And such number of members as has been determined by the rules of the registered Trade Union.

(c) "Union" means a Trade Union registered under the Act and includes an Association registered under the Karnataka Labour Act, 1942.

(d) "Section" means Section of the Act.

(e) "Commissioner of Labour" means the Officer appointed to be the Commissioner of Labour in Karnataka and includes the Assistant Commissioner of Labour.

3. (1) The Members of the Executive Committee, other than the office-bearers shall consist of persons representing several Departments in the industry or such group of Departments as may designated by the Returning Officer and shall be elected by members on such department or group of departments as the case may be at or on such date or dates immediately preceding the annual meeting of the General Body of members as may be fixed and notified by the Returning Officer.

(2) The members of the Executive Committee and the officer-bearers shall be elected once in two years at the annual meeting of the General Body of the members.

4. (1) For the purposes mentioned in Rule 3, the President and in his absence the Vice-President, and in the absence of the President and the Vice-President, the Secretary or the Assistant Secretary or any other person duly authorized by the Executive Committee shall be the Returning Officer and shall notify the calendar of events in Form 'A', annexed to these Rules, appointing -

(a) a date for the publication of preliminary voters' list.

(b) a date for the publication of final list of voters;

(c) a date on or before which notices of candidature are to be presented;

(d) a date for the scrutiny of notices of candidature;

(e) a date not later than the date next succeeding the date fixed for the scrutiny of notices of candidature, on or before which candidatures may be withdrawn;

(f) a date for the publication of the list of candidates standing for election; and

(g) a further date or dates on which a poll shall, if necessary, be taken:

Provided that any person, who is a candidate for the election shall not be the Returning Officer.

(2)(a) The commissioner of Labour or his nominee shall be the Returning Officer for conducting elections of the Union whose membership exceeds 2,000. The Returning Officer may appoint as many polling officers as may be necessary, for conducting such elections.

(b) The Union which requires the assistance of the Commissioner of Labour for conducting elections, shall by a resolution passed by the Executive Committee, request the Commissioner of Labour to conduct the elections. The cost of the elections shall be borne by the Union and the said cost shall be deposited in the office of the Commissioner of Labour in advance.

... ... ... ..."

The Karnataka Trade Unions Election (Model) Rules supra were

published for information and guidance of Trade Unions for framing

their own Rules under Section 6 of the Indian Trade Unions Act,

1926. The elections are not being held under the Model Rules, as it

is seen that these Model Rules were published for information and

guidance of Trade Unions for framing their own Rules. The Rules

are to be framed under Section 6 of the Trade Unions Act, 1926.

Therefore, they were statutory Rules. It is not that the Union has

not framed any Rules and Regulations. The Rules and Regulations

were made and notified under Section 6 of the Trade Unions Act,

1926 which has been amended from time to time and what is

holding the field now is the amended Rules as amended on

25-03-2021. The Rules also contemplate conduct of elections. They

are termed as Election Rules. The Election Rules depict complete

voting procedure right from the appointment of Returning Officer,

drawing up of calendar of events and the manner in which elections

are to be conducted.

10. The effort that is put up by the petitioners is that

elections are not being held in furtherance of the Model Rules. The

emphatic submission is the Union once having adopted the Model

Rules and framed its own Rules and Regulations cannot now act

contrary to the Model Rules in any manner. He would submit that it

is not for the first time that these petitioners are agitating their

grievances. At every election they have made an effort to project

their grievance before this Court. At every time elections would be

over and on that account the petitions were rendered infructuous.

One such order passed on 21-10-2013 in Writ Petition No.27572 of

2011 reads as follows:

"The learned counsel for the respondents submit that in the month of August 2011, elections were held to the Executive Committee of the Karnataka Power Transmission Corporation Employees Union. Therefore, this petition has become infructuous.

2. The learned counsel for the petitioner submits that elections were conducted without following the Karnataka Trade Unions Election (Model) Rules, 1953, particularly Rule 4 sub-clause 2.

3. Since elections were conducted and results were declared, this petition has become infructuous. However, the respondents are directed to follow the above said rule while conducting elections in future."

(Emphasis supplied)

The learned single Judge notices the grievance of the petitioner.

Though elections are conducted without following the Model Rules

particularly sub-rule (2) of Rule-4 which is quoted supra, the

direction was that, in future the elections would be conducted in

tune with the aforesaid Rule 4(2). Again when elections were

sought to be conducted, few of the members had knocked at the

doors of this Court in Writ Petition No.8733 of 2020 which also

comes to be disposed of in the light of the elections being over. The

present petition projects the same grievance.

11. The learned senior counsel appearing for the 3rd

respondent, as observed supra, has vehemently contended that the

Model Rules are only a guiding light till the Rules and Regulations

are framed. This submission stands to reason as the same Rules

which the petitioners now seek to project in the Model Rules had

come up for consideration before this Court in the judgment

rendered in H.M.T. KARMIKA SANGHA (supra). In the said

judgment, a learned single Judge of this Court has held as follows:

".... .... ....

12. As far as the Election Rules are concerned, it is not disputed by the Learned Counsel for the Petitioner that the Rule similar to 4(2)(a) and (b) of the Model Election Rules as introduced by the Mysore Trade Union Election (Model) (Amendment) Rules 1968 has not been incorporated in its Rules. Therefore no reliance can be placed upon the said Rules.

13. Learned Counsel for the Petitioner submitted that even according to the existing Rules, there is no bar for the Petitioner to request the Labour Commissioner or his nominee to be a Returning Officer. In support of his submission he relied on Rule 4 of the Election Rules of the Petitioner. It reads:

"For purposes mentioned in the proceeding Rule 3 and for purposes of conducting the elections of the Sangha, the President, in his absence the Vice President or Secretary in his absence Joint Secretary, or any person duly authorised by the Managing Committee shall notify the Calendar of events in Form 'A'.

(Underlined by me - in the original)

Learned Counsel submitted that having regard to the wording of the Rule while it was open for the President, Vice- President, Secretary or Joint Secretary of the Petitioner to be

a Returning Officer, it was also open for the Managing Committee to request any other person to be a Returning Officer. He submitted that as in the present case the Managing Committee had requested the Labour Commissioner to nominate a Returning Officer he was bound to do so.

14. It may be as contended for the Petitioner the expression 'any other person duly authorised by the Managing Committee' in the Election Rules of the Petitioner as existing, can include the Labour Commissioner or his nominee. But still the question arises, whether a Writ of Mandamus would lie to the Commissioner to nominate a Returning Officer. The Rules framed by a Trade Union for purposes of securing registration under Section 6 of the Act are Rules meant for its internal administration and are equivalent to the bye-laws of Co-operative Society or Rules framed by a Society for securing registration under the Societies Registration Act. They would have no statutory force and consequently cannot create any statutory obligation in the Commissioner. (See (1969) 2 SCC 43 :

A.I.R. 1970 S.C. 245) Therefore, even if the Petitioner - Union had incorporated Rules similar to Rule 4(2)(a) and (b) of the Model Election Rules into its Election Rules, or even if the rules without such amendment also provided for requesting the Labour Commissioner to nominate a Returning Officer, the Commissioner could not be compelled by the issue of a Writ of Mandamus to nominate a Returning Officer as the Trade Union has no authority to create a statutory duty in the Commissioner by framing its own Rules which have no statutory force. Therefore, I consider it impermissible to issue a Writ of Mandamus to the Labour Commissioner, as sought for.

15. However, I may observe, that the Commissioner of Labour appointed by the State Government is placed in over all in-charge of the administration of the Labour Department and therefore if a Trade Union makes a request to appoint an Officer of the Labour Department as a Returning Officer, and he considers that it is expedient to do so, he could do so and there is nothing in the Act or Rules

which prevents him from doing so. Therefore, in this case, particularly, having regard to the fact that the Petitioner-Trade Union had nominated an Advocate as Returning Officer but the same was challenged by some other persons and there was an injunction against him not to hold the elections and as the term of the office Bearers of the Petitioner Union expired on 5-5-1984, and no election has taken place so far, it is open to the Labour Commissioner to reconsider the matter and nominate a Returning Officer acceding to the request of the petitioner though he cannot be compelled by the issue of a Writ of mandamus."

(Emphasis supplied)

This Court considers sub-rule (2) of Rule 4 of the Model Rules and

holds that a writ of mandamus to nominate a particular Returning

Officer cannot be issued by this Court. The Model Rules are adopted

even without any amendment. The said Rules are meant for

internal administration. They would have no statutory force and

would not consequently create any obligation in the State to

appoint the Labour Commissioner as the Returning Officer.

However, the Court would further observe that if the State

considers it expedient to do so, it could do so as nothing in the Act

or the Rules which prevent the State from doing so, that is

appointment of Labour Commissioner as the Returning Officer.

12. What would unmistakably emerge from the aforesaid

judgment or the contentions put forth by both the learned counsel

is that there should be harmonious approach between the Model

Rules and the Rules and Regulations. In the event the Rules and

Regulations do not contemplate any situation which the Model Rules

have projected, it will not come in the way of the respondents

conducting elections even looking into the Model Rules. More so, in

the light of the fact that a learned single Judge of this Court while

closing the petition as infructuous observes that Rule 4(2) of the

Model Rules shall be followed in future. Therefore, the respondents

shall consider the representations of the petitioners qua the

grievance and hold elections harmonizing the two where the Rules

and Regulations are silent. A caveat, it should not be considered

that the Model Rules have the effect of replacing the Rules and

Regulations. But, if there are gaping holes in the Rules and

Regulations, it can be filled up by the Model Rules in which case no

prejudice would be caused to anybody by adopting the same, as

that is the foundation for formation of the Rules and Regulations.

13. With the aforesaid observations, directing consideration of

the representations submitted by the petitioners, the petition

stands disposed of.

Consequently, pending application if any, also stands

disposed.

Sd/-

JUDGE

bkp CT:SS