IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6697 of 2011 THE MUNGER TOBACCO MANUFACTURING WORKERS & ANR . Versus THE STATE OF BIHAR & ORS . For the Petitioners:- Mr. Alok Kumar Sinha, Mr. Indrajeet Bhushan, Mr. Manish Kumar, Advocates For the State:- Mr. Anant Kumar, AC to AAG-II, Mr. Ranjeet Kr. Pandey, AC to GP-21 For the Management I.T.C.:- Mr. Shivajee Pandey, Sr. Advocate, Mr. Nalin Vilochan Tiwary, Advocate For Respondent No.6:- Mr. S. Azeem, Advocate For Respondent No.7:- Mr. Tarun Kumar Sinha, Advocate ----------- 03. 10.05.2011 Heard learned counsel for the petitioners, the State and respondent nos.4, 6 and 7. The petitioner is stated to be a Trade Union registered under the Trade Unions Act in the respondent no.4 Industry bearing Registration No. 68. It is aggrieved by the order dated 15.3.2011 of the Joint Labour Commissioner-Cum-Conciliation Officer, declining to proceed with conciliation after having commenced the process. Learned counsel for the petitioner submits that the petitioner Union came to Court earlier in C.W.J.C. No. 19554 of 2010 with the grievance that after initiation of the conciliation proceeding it had to be taken to its logical conclusion and the Conciliation Officer could not have declined to proceed merely for the reason that a 2 writ application may have been pending before this Court. Directions had been given to the Conciliation Officer, to pass final order in accordance with law. It is next submitted that the Conciliation Officer has no adjudicatory powers to decide on the issue of representation of the officer bearers of the Union. The Conciliation Officer could not have declined to take the conciliation to its logical conclusion especially when the petitioner Union and the Management were wanting a statement. The Conciliation Officer at best could have given a failure report under Section 12 (4) of the Industrial Disputes Act, 1947. The fact that the life of the office bearers of the Union may have expired was an irrelevant issue as these office bearers continue to represent the Union till such time that fresh elections to the Union are not held. This has been the past practice also as detailed in paragraph-43 of the writ application were settlement between the Union, the Management and the State authorities, as tripartite settlement were arrived at. There is no order of any competent authority holding that these office bearers do not continue to hold office after expiry of their tenure and neither have they been removed from their posts. Learned counsel for the Management has supported the petitioner Trade Union. It has been urged 3 that the Union has not be derecognized. If the Management is not allowed to negotiate the settlement with the petitioner Union it will only create further complications with regard to labour relations in the Industry. Learned counsel for the State submits that once the tenure of the office bearers has expired under the Bye-laws of the Union the office bearers have no authority to represent the Union and therefore the impugned order merits no interference as otherwise it is well reasoned. Learned counsel for respondent nos. 6 and 7 relied upon the orders of this Court in C.W.J.C. No. 16707 of 2011 and 4070 of 2010, disposed by this Court on 9.5.2011 noticing the directions of the Labour Commissioner-Cum-Registrar Trade Unions dated 28.4.2011, wherein directions have already been given to hold the elections for office bearers of the petitioner union on or before 27.6.2011, failing which the registration of the Union shall be deemed to have been cancelled with effect from 28.6.2011. It is submitted that this Court also took note of the recitals therein that repeated opportunities had been given for holding election notwithstanding which the elections were not being held leading to the peremptory nature of order by 4 the Labour Commissioner-Cum-Registrar. The identity of a registered Trade Union is one aspect of the matter. The office bearership of such a registered Trade Union is another aspect of the matter. If the Trade Union is dissolved, the office bearership automatically comes to an end. But, if the office bearership comes to an end under the Bye-laws upon expiry of tenure, it does not automatically tantamount to dissolution of the Union. The Bye-laws of the petitioner Union in Clause 6(B) provide for election of office bearers to be held every year. Clause 10 (a) of the Bye-laws deals with vacancies that shall occur during the year and life time of the office bearers so elected of the manner in which it is to be filled up. Clause-10 (b) provides for removal of office bearers. Much stress has been laid on behalf of the petitioners on this latter clause. On a plain reading, the Bye-laws provide that the office bearers shall have a tenure of one year after which fresh elections are required to be held. If vacancies occurred during the life time of the office bearership within the year, it has to be filled up in the manner prescribed. Clause-10 (a) of the Bye-laws cannot be read as a substitute for filling up the entire vacancies of the Trade Union by continuance of the office bearers whose term has expired merely because elections may not have 5 been held. Once their term has expired no express orders under Clause 10 (b) for removal are required. It is obvious that Clause-10 (b) deals with removal of the office bearers during the tenure of one year. The impugned order states that the tenure of the present office bearers of the petitioner Union has expired on 17.3.2010. There is no denial of this fact in the writ petition. The writ petition is completely silent on what steps have been taken to hold the fresh elections and why the petitioners Union are shying from holding fresh election. As was submitted before the Court by the private respondents only Yesterday this court has more than adequately taken notice of the order of the Labour Commissioner dated 28.4.2011 including the recitals contained therein of the repeated opportunities given to petitioner Union for holding the elections. The writ petition is silent on these aspects. On 3.1.2011 while disposing C.W.J.C. No. 19554 of 2010, this Court had noticed the objection that another writ petition was pending questioning the locus of the petitioner therein to represent the Union on account of the tenure of its office bearers having expired. This Court did not pronounce on that issue but simply observed that, if a conciliation proceeding had been initiated, it cannot be dropped only on the ground of 6 pendency of a writ application. The conciliation Officer was directed to “pass fresh final appropriate orders in accordance with law”. If the Bye-laws provide for a tenure of one year only for office bearership, there can be no deemed assumption of the extension of the life of the office bearership, contrary to the bylaws, reading something in the bylaws which is not there. The submission that some practice had been followed in the past contrary to the Bye-laws cannot create a legal right were non-exist. The impugned order has been passed on the ground that the Conciliation Officer did not consider himself competent to proceed further in view of the fact that the office bearers representing the petitioner Union had lost the legal authority to represent it. To this Court that comes fully within the nature of the directions given by this Court in C.W.J.C. No. 19554 of 2010. The impugned order does not pass an adjudicatory order of any nature when it holds that those representing the Union had lost the authority to represent the union. It is only the pronouncement of the legal position under the bylaws. There is no merit in this writ application. It is accordingly dismissed. P.K. (Navin Sinha, J.)