if'i t . ^! :1^ ! -rjyy 0 ^"JS ~w J ir^ < i'; ^ j ^' Petitioners IN THE HFRH.COURT QEOmATTISGARH BEW» AT BILASPUR W.P.(L)No. {53-^- /2Q08 (Single Bench - Trade Union Recognition Dispute) 1. Dakshin Purva Madhya Railwav Mazdoor Saneh fRei?ri No. 79) Through : General Secretary Dakshin Purva Madhya Railway Mazdoor Sangh Registered Office : Bilaspur (C.G.) Office at : -&/516 Near Sitla iu^^ Mandir, Post Office Gali, " Tikrapara, Bilaspur (C.G.) yEmjs RBCBNEO-COP^ : 1. Union of Indi&t^tAspyft Through Secretary Ministry of Railways Govt. of India, Rail Bhawan New Delhi. t^ Respondents f^- "•"' 1 ^ss.-t 2. Railway Board, Rail Bhawan, New Delhi Through : Chairman RaiRvay Board ^- 33<°4 ?-G^ Mini^ry of Railways g ^-^ S I?, t^ ^'~ *L-'J -.. fQoy of India, New Delhi ££.^' l;--^^ w- 3; Registrar Trade Unions Office of Labour Commissioner Govt. of Chhattisgarh Raipur (C.G.) •^^ 6^ vle^}£>S fe'y-A •'^;--VI . ^^ ^ %'" ^p'srg";-- 5. ^^ 4. General Manager South East Central Railway Railway Colony, Bilaspur C.G. 6. 7. South East Ceatral Railway Mens Union (An unregi-stered & bogus Union) Through General Manager, South East Central Railway, Railway Colony Bilaspur (C.G.). Rail Kamgar Sena (RegdNo. ALC/Karyasan/17/9630 23.03.2000 Registrar of Trade Union Commerce Center Taddev Mumbai 34 Through General Secretary Rail Mazdoor Union (Regd. No. BY-1.1-7867) Dated 03.01.1983 Registrar of Trade Unions Bombay m: 'l y»^.~—"^.."i>y *^ScflT7;t,;-^^/ 8. South East Central Railway Mazdoor Congress (Regd No. 78) Registrar of Trade Union Raipur (C.G.) Regd. Office : Hemu Nagar Bilaspur (C.G.) /:,f!|- ^l^/^ '•""s^w^, ,»» Shri N. K. Prasad (Chief Personnel Officer) South East Central Railway Bilaspur (C.G) and Returning Officer for Recognition of Trade Unions in South East Central Railway Bilaspur (t.G.) WRIT PETITION UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA, !E B<i" KIS' HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (L) No. 1532 OF 2008 Dakshin Purva Madhya Railway Mazdoor Sangh (Regd. No.79) Versus Union of India & Others And WRIT PETITION (0 No. 4848 OF2008 South East Central Railway Mazdoor Congress Versus Union of India & Others 7% Post for pronouncement of Judgment on ^ day of October 2009 Sd/- Satish K. Agnihotri Judge Wtiiiti. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (U No. 1532 OF 2008 Petitioner : Dakshin Purva Madhya Railway Mazdoor Sangh (Regd. No.79) Respondents Versus Union of India & Others Present:- Shri V.G. Tamaskar, Advocate for the petitioner. Ms. Naushina Afrin Ali, Advocate appearing on behalf of Shri Amit Choudhary, Standing Counsel for the Railways/ respondent No.1, 2, 4 and 9. Shri Kishore Bhaduri, Additional Advocate General with Ms Sunita Jain, Panel Lawyer for the State/respondent No.3. Shri Utkarsh Verma, Shri Ashish Surana and Shri Pallav Mishra, Advocates for the respondent No. 5. Shri Prateek Sharma, Advocate for the respondent No. 6. Shri Sourabh Sharma and Shri Anumeh Shrivastava, Advocates appearing on behalf of Shri Sanjay K. Agrawal, Advocate for the respondent No. 7. Shri P.S. Koshy, Advocate for the respondent No. 8. And WRIT PETITION (0 No. 4848 OF2008 Petitioner Respondents South East Central Railway Mazdoor Congress Versus Union of India & Others Present:- Shri Prafull N. Bharat, Advocate for the petitioner. Ms. Naushina Afrin Ali, Advocate appearing on behalf of Shri Amit Choudhary, Standing Counsel for the Railways/ respondent No.1, 2, 4 and 5. Shri Kishore Bhaduri, Additional Advocate General with Ms Sunita Jain, Panel Lawyer for the State/respondent No.3. Shri S.S.Sanyal, Advocate for the respondent No.6. (Writ Petitions under Article 226 of the Constitution of India) (Single Bench : Hon'ble Shri Satish K. Agnihotri, J.) K '%SB&, ^. ""' '""E^ w ..rf JUDGMENT (Passed on .j6.day of October, 2009) The petitioner, i.e. Dakshin Purva Madhya Railway Mazdoor Sangh, in W.P.(L) No.1532 of 2008 impugns the order dated 4th December, 2007 (Annexure P/12) passed by the 4 respondent whereby South East Central Railway Men's Union i.e. the 5 respondent herein (for short "the respondent Union"), was declared as recognized union of South East Central Railway, after having obtained 45.19% vote of total electorate with the symbol 'train', subject to outcome of Writ Petition No.7596 (M/B) of 2007 filed by Rail Mazdoor Union in the High Court at Lucknow Bench. South East Central Railway Mazdoor Congress, petitioner in W.P. (C) No. 4848 of 2008, challenges the legality and validity of the same order i.e. order dated 4 December, 2007 whereby the respondent Union was declared recognized on the same ground. In view of foregoing, both the writ petitions are being decided by this common order. The indisputable facts, as projected by the petitioners, are that the Dakshin Purva Madhya Railway Mazdoor Sangh is a registered Trade Union bearing Registration No.79 under the provisions of Trade Union Act, 1926 (for short "the Act, 1926"). 6th and 7th respondents i.e. Rail Kamgar Sena and Rail Mazdoor Sangh are also registered trade unions. Their registration is with the Registrar of Trade Unions, Bombay in the State of Maharashtra. 8 respondent i.e. South East Central Railway Mazdoor Congress (i.e. petitioner in W.P.(C) No. 4848 of 2008) is also a registered trade union bearing registration No.78 (Annexure P/2). The respondent Union is an unregistered body and, as such, was not entitled to contest any election. 9 respondent was appointed as returning officer for conducting the elections for recognition of trade union scheduled to be held on 26.11.2007, 27.11.2007 and 28.11.2007. The registered and local trade unions were only eligible to contest the election as per para 2 (C) of the modalities prepared by the Secret Ballot Committee (Annexure P/3). The 5 , 6th and 7th respondents were not eligible to be recognized. The petitioner alone was eligible for contesting the election and being declared as recognized trade union. 6th and 7 respondents were not eligible to contest the election in Chhattisgarh. The Registrar ofTrade Unions, Government of Chhattisgarh by letter dated 16th January, 2008 (Annexure P/6) submitted that except following three unions i.e. ~^SU\ ^ ^M ^ TRT ^PH, ftdRP^, '<^[UT ^ ^RHI ^ ^q^ WT, WJZf f'R ^rT ^ cM'i'ff, Rrfray, no other union is registered. 9th respondent accepted illegal nomination of the respondent Union and also the 6th and 7 respondent. In the ballot paper, name of the unregistered trade union i.e. the respondent Union was printed when the Registrar, Trade Unions have clearly stated that there was no such union registered with the Registrar, Trade Unions, Chhattisgarh. The 6th and 7 respondents did not fulfill the conditions 2 (C) as laid down in the modalities (Annexure P/3). Thus, declaration ofthe respondent Union as the recognized trade union, which is an unregistered and bogus trade union, is illegal. Inclusion of 6th and 7 respondents to contest the election was also contrary to the modalities and, as such, 4 and 9 respondents have, therefore, violated all the norms and 6. declared the respondent Union as the recognized trade union, which is contrary to law. Shri Tamaskar, learned counse] appearing for the petitioner in W.P. (L) No. 1532 of 2008 and Shri Prafull Bharat, learned counsel appearing for the petitioner in W.P.(C) No.4848 of 2008, would submit that the election conducted by the Railway Department in November, 2007 whereby the respondent Union was declared as recognized trade union of South East Central Railway was bad in law, illegal and unconstitutional as is clear from the letter dated 16 January, 2008 (Annexure P/6) that "Dakshin Purva Madhya Railway Men's Union", Dakshin Purva Madhya Railway Mazdoor Sangh and South East Central Railway Mazdoor Congress, only were registered with the Registrar, Trade Unions and the respondent Union i.e. South East Central Railway Men's Union was not registered with the Registrar, Trade Unions. The modalities (Annexure P/3) clearly show that only the registered trade unions can contest the election and the respondent Union i.e. SECRMU was not a registered trade union, as aforementioned. It is further submitted that the 9th respondent has used the abbreviation i.e. SECRMU, which is similar to the abbreviation of the petitioner's name i.e. SECRMC, whereas the alleged name of the South East Central Railway Men's Union is Dakshin Purva Madhya Railway Men's Union and the abbreviation of which could only have been DPMRMU. There was no proper scrutiny of the nomination papers at the hands of 9 respondent. The translation of the registered trade union is not permissible under the law. Subsequently, during the pendency of this petition, the Railway Department has issued a corrigendum on 10 December, 2008 stating that the Railway Department has corrected the mistake and granted DPMRMU the recognition. The guidelines issued for registering trade union held in Annexure P/3, modalities has clearly provided that the unions are not permitted to use translated version of the name of the union in which it is registered with the Registrar, Trade Unions. Thus, the petitions be allowed and the impugned order be quashed. 7. It is submitted that the registration number of 57 is the registration number of '^SFT ^ ?N ^ TRT ^PPT'T. It is evident that the translation of the registered union in the name of ^to ^ 'qEq ^ ^RI u^W is not permissible under law. 8. On the other hand, Ms Naushina Afrin Ali, learned counsel appearing for the respondent-authorities/Railways, would submit that the election for recognition of trade unions was conducted as per the Rules for the Recognition of Service Associations of Railway Sen/ants (Chapter XXV {Indian Railway Establishment Manual - Vol. II (1990 Edition}) (for short "the Railway Manual"}. Rule 2512 of the Railway Manual provides that the recognition will not ordinarily be granted or continued to any association unless, inter alia, it is registered under the Act, 1926. Modalities for elections were accordingly prepared. Five trade unions namely; Dakshin Purva Madhya Railway Majdoor Sangh [Reg.No.79 (Raipur)], Rail Kamgar Sena [Reg. No.ALC/Karyasan/17/9630 (Mumbai)], Rail Mazdoor Union [Reg. No. BY-11-7867 (Mumbai)], South East Central Railway Mazdoor Congress [Reg. No.78 (Raipur)] and Dakshin Pun/a Madhya Railway Men's Union [Reg. No.57 (Raipur)] participated in the election. The Registrar, Trade Unions confirmed that the respondent Union was registered with the office of Registrar, Trade Unions and its registration numberwas 57. 9. Ms Ali would further submit that after due scrutiny of nomination forms symbols were allotted. The symbols as well as the abbreviations used by the contesting unions were published in ballot papers in English and Hindi. The work of Railways, being a Government organization, is to be done bilingually i.e. both in English and Hindi, as provided in sub section (3) of Section 3 of the Official Languages Act, 1963. Dakshin Purva Madhya Railway Men's Union was declared as recognized union in the result declared on the 3 December, 2007. The letter of recognition was subsequently issued on the 4 December, 2007, as the respondent Union obtained more than 45.19% votes. Trade Unions need to be ordinarily registered and not necessarily registered. Even if the respondent union was not registered and fulfill the other requirements i.e. it must consist of a distinct class of Railway servants and must not be formed on the basis of any caste, tribe or religious denomination or of any group within or section of such caste, tribe or religious denomination; all railway servants of the same class must be eligible for membership; and it must be registered under the Indian Tracfe Unions Act. Ms All, would next submit that the recognition can be granted to the union by the Railway. A corrigendum was issued on the 10 December, 2008 to the effect that in place of 'South East Central Railway Men's Union' it may be read as 'Dakshin Purva Madhya Railway Men's Union'. 10. Shri Utkarsh Verma, learned counsel appearing for the respondent Union, would submit that the registration of the respondent union is done under the provisions of Section 5 of the Act, 1926 and the recognition is granted by the Railways as per the procedure laid down in Chapter XXV of the Railway Manual. Admittedly Dakshin Pun/a Madhya Railway Men's Union was registered with the office of the Registrar, Trade Unions on the 22nd November, 2002. The certificate of registration was issued as per the provisions of Section 9 of the Act, 1926 in form "C" (Annexure - R5/1). The Indian Railways reconstituted its Railway Zones in March, 2003. South East Central Railway Zone with its headquarter at Bilaspur was carved out from an earlier existing Zone namely; South Eastern Railway having its headquarter at Graden Reach, Calcutta. Shri Verma, would submit that the union, which was registered with the South Eastern Railway, was the parent union in the name of South Eastern Railway Men's Union. Hence, after new Zone i.e. South East Central Railway came into existence the respondent union was registered and the said union was continued to be recognized as South East Central Railway Men's Union. 11. Shri Verma would further submit that there is no confusion in the minds of members of South East Central Railway Men's Union, who are Group 'C' and 'D' employees of South East Central Railway. Dakshin Purva Madhya Railway Men's Union is, in fact, South East Central Railway Men's Union. The respondent Union filed its nomination as Dakshin Pun/a Madhya Railway Men's Union in the proforma provided. After the election the respondent union was declared as recognized union South East Central Railway. The & n / "'tSs-s-''" ^' '^'••ssas"' respondent union was allotted symbol 'train', as is evident from Annexure - P/11 of W.P. (L) No.1532 of 2008. All the contesting unions were communicated vide letter dated 4 December, 2007 (Annexure - P/12) with regard to recognition of the respondent Union. 12. Shri Verma would next submit that the corrigendum dated 10 December, 2008 has cured the defect as pointed out by the petitioners. Thus, the writ petition has become infructuous. The corrigendum cannot be challenged without amending the writ petition by way of rejoinder. Dakshin Purva Madhya Railway Men's Union has not impleaded a party respondent and, as such, the writ petitions desen/e to be dismissed on account of non-joinder of necessary parties also. There is a delay in filing the petitions, as the letter dated 4 December, 2007 was communicated to the petitioner immediately and the petitioner has filed this petition on the 7h March, 2008. There is no explanation for delay and laches on the part of the petitioner. 13. Shri Koshy, learned counsel appearing for the respondent No.8/ South East Central Railway Mazdoor Congress in W.P. (L) No.1532 of 2008, supporting the petitioner, would submit that the election conducted by the Railways in November, 2007 is illegal and unconstitutional on the ground that the South East Central Railway Men's Union is not a registered union with the Registrar, Trade Unions. The said union should not have been permitted to contest the elections in the said name. The respondent union has participated in the election playing fraud with the voters. The respondent union used the abbreviation SECRMU, which is similarto 'SBSfe, l.s£rf^ the abbreviation of the respondent No.8 i.e. SECRMC. The respondent union ought to have used the abbreviation DPMRMU. All these activities have been done by the Railway with a ma/a fide intention of giving advantage to the respondent union. The respondent union is not permitted to translate its name in English as South East Central Railway Men's Union. It ought to have been written its name in English as Dakshin Purva Madhya Railway Men's Union. 14. I have heard learned counsel appearing for the respective parties, perused the pleadings and the documents appended thereto. 15. Challenge in both the writ petitions is to the recognition of the respondent union on South East Central Railway. There is no dispute that Dakshin Purva Madhya Railway Men's Union was registered with the office ofthe Registrar, Trade Unions, Government of Chhattisgarh with Registration No.57. In the nomination form, which has been submitted by the respondent Union, against the serial No.1 i.e. name of union, is Dakshin Purva Madhya Railway Men's Union, in serial No.2 i.e. abbreviation used by union it has been mentioned as DPMRMU and against the serial No.3 i.e. abbreviation in the local language (if any) it has been mentioned as SECRMU. The period of submission of nomination forms was 15-10- 2007 to 25-10-2007. The 9th respondent accepted the nomination form of the respondent union along with others and conducted the election for recognition of trade unions on 26-11-2007, 27-11-2007 and 28-11-2007. Counting ofvotes was commenced and completed on the 3r December, 2007. Out of 5 contesting unions i.e. both the writ petitioners and 5th, 6th and 7th respondents in W.P. (L) No.1532 ~^9S8s- 10 16. 17. of 2008. The result was intimated by letter dated 4 December, 2007 to all the contesting trade union as under: "On the basis of the above, South East Central Railwaymen's Union which has obtained 45.19 %age vote of total electorate with the Symbol "Train" is declared as recognized Union on South East Central Railway subject to outcome of writ petition No.7956 (M/B) of 2007 filed by Rail Mazdoor Union in the Hon'ble High Court, Lucknow Bench." It was further stated that the recognition is subject to conditions mentioned in Annexure - I. During pendency of the writ petitions, on the 10 December, 2008 the correction was made by the Railway authorities stating that the Dakshin Purva Madhya Railway Men's Union, Registration No.57 is declared as recognized union on South East Central Railway. No challenge was made in the writ petition except in the rejoinder to quash the corrigendum dated 10 December, 2008 and recognition of the respondent union. No necessary amendment was made in the prayer clause of the main writ petition and, as such, 1 am of the view that the challenge in the rejoinder cannot be held as challenge in the main writ petition. The other challenge is on the grounds that the translated name of the original trade union i.e. Dakshin Purva Madhya Railway Men's Union, Registration No.57 cannot be permitted to contest the election and, as such, declaring the respondent union as recognition trade union is bad in law. Secondly, there are gross irregularities by publishing amendments to fabricate voter list, without specifying particulars of voters which has been fabricated. 11 18. 19. It is worthwhile to mention here that no objection was raised by the petitioners when the nomination form was filed by the respondent union and the same was accepted by the 9th respondent. The petitions were filed by the petitioners after declaration of the result on the ground that the respondent union is not a registered union. Clause 27 of the Modalities for conducting secret ballot for the purpose of granting recognition to registered Railway trade unions representing all categories of Group "C" and Group "D" employees of Indian Railways (for short 'the Modalities") provides that "any dispute regarding elections/counting of votes shall be ra'ised on the day following the last day ofthe election/declaration ofresult. Afterexpiry of this period, the result declared by the General Manager of the Zonal Railway will be treated as final." The initial challenge ought to have been made at the time of filing of nomination form, which was not done in the present case and thereafter, the dispute could have been raised. The petitioners have challenged the declaration of results and nomination form submitted by the respondent union in these writ petitions for the first time. On the 30th October, 2007 the Government of India, Ministry of Railways informed the Chief Personnel Officers, All Indian Railways that ";'n view of the decisions of the Hon'ble Courts at Delhi and Lucknow, clause 2 (c) of the Modalities stands annulled for the present till the courts deliver final decision in the matter. The nomination should thus be scrutinized keeping this fact in mind." Clause 2 (c) of the Modalities is with regard to the jurisdiction of the registered Trade Union, which should geographically conform to the jurisdiction of the concerned Zonal General Manager to whom the 12 application is made and who is competent to recognize the union and also competent to take any action against unions as and when necessary. 20. On perusal of the nomination form, it appears the nomination form submitted by the respondent union bearing registration No.57 i.e. Dakshin Purva Madhya Railway Men's Union, however, against the column No.3 i.e. abbreviation in the local language (if any), it has been mentioned as SECRMU. It appears that, the same was done on account of the fact that Dakshin Purva Madhya Railway Men's Union was known as SECRMU. This mistake was subsequently corrected by corrigendum dated 10 December, 2008. Thus, it cannot be held that the nomination form submitted by the respondent union was bad, as the same was filed by the respondent union, which was registered with the registration No.57. 21. Under clause 2512 of the Manual the provision does not seem to be mandatory, as it starts with the word the recognition will not ordinarily be granted or continued to any association unless it complies with the following conditions, inter alia, it must be registered under the Indian Trade Unions Act. In the present case, the nomination form was submitted by the respondent union and is admittedly registered with the office of the Registrar, Trade Unions having registration No.57. There appears to be some mistake in the nomination from. The same ought to have been raised by the other contesting Trade Unions either at the time of acceptance of nomination form or after declaration of result as provided under the provisions of the Modalities. The same having not been done, cannot be permitted to be agitated in these writ petitions. 13 22. In support of their contention, learned counsel appearing for the petitioners placed their reliance upon the decisions of the Supreme Court rendered in Anil Kumar Gupta and Others vs. State of U.P. and Others and B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others . The facts of the said decisions are not applicable to the dispute involved in the present case and even otherwise no glaring illegality has been noticed, ofwhich, this Court should take cognizance. 23. In support of the contention that challenge by way of rejoinder and subsequent development may be taken cognizance by the Court, learned counsel for the petitioners placed their reliance upon the decisions of the Supreme Court rendered in Ramashray Singh vs. New India Assurance Co. Ltd. and Others and Lachhman Das vs. Jagat Ram and Others . There is no subsequent development in this case except that a corrigendum was issued and that was not challenged by the petitioners by seeking amendment in the writ petitions. The rejoinder is a reply to the return/response filed by the respondents and there is no occasion for the respondents thereafter to file response to the challenge, if any, made in the rejoinder. 24. In Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor and Others , the Supreme Court observed as under: "8....1t is too well settled that the petitioner who approaches the court invoking the extraordinary jurisdiction of the court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring the respondent to indicate its stand either by denial or by positive ' (1995)53cc 173 2 (2006) 11 SCC731 (II) 3(2003)10SCC664 "(2007)10300448 5 (1998)73cc 469 25. assertions. But in the absence of any averments in the writ petition or even in the rejoinder-affidavit, it js not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing. The High Court, therefore, inourview committed serious error in coming to the conclusion that there existed vacancies in the post of Fietd Supervisor on the materials produced beforeit......* The Supreme Court in Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd., observed as under: "4...1t is settled law that'unless the allegations are made in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess of