1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1674 OF 2004 1. Bombay Electric Workers’ Union, a trade union registered under the Trade Unions Act, 1926, having its office at 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. 2. R.K.Kottary, General Secretary, Bombay Electric Workers’ Union, having his office at 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. 3. S.R.Patil, Treasurer, Bombay Electric Workers’ Union, having his office at 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. : Petitioners V/s. 1. Vithal S. Gaikwad, C/o. Bombay Electric Workers’ Union, Tayabi Mansion, Parel, Mumbai--400 012. 2. Felix D’Souza, C/o. Bombay Electric 2 Workers’ Union, BSES Ltd., BSES House, Santacruz (E),Mumbai--55. 3. BSES Limited, a public limited Company incorporated under the provisions of the Indian Companies Act, 1913, having its registered office and Corporate Office at BSES House, Santacruz (E), Mumbai--55. 4. V.P.Rothe, Member, Industrial Court, Maharashtra, at Mumbai. : Respondents ... Mr.K.K.Singhvi, Senior Counsel, i/b. Mr.G.S.Kulkarni for the petitioners. Mr.A.V.Bukhari i/b. Mr.Kishore Shetty for respondent no.1. Mr.J.P.Cama with Mr.S.N.Shah i/b. Mr.K.P.Anilkumar for respondent nos.2 & 3. ... With WRIT PETITION NO.1673 OF 2004 1. Bombay Electric Workers’ Union, a trade union registered under the Trade Unions Act, 1926, having its office at 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, 3 Mumbai--12 through its President, Shri Felix D’Souza. 2. Felix D’Souza, President, Bombay Electric Workers’ Union, 7,Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. 3. Arun Karekar, Working President, Bombay Electric Workers’ Union, 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. 4. B.J.Redekar, Vice President, Bombay Electric Workers’ Union, 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--400 012. 5. Janardhan Uchil, Vice President, Bombay Electric Workers’ Union, 7, Tayabi Mansion, Ground Floor, Dr.Batliwala Road, Parel, Mumbai--12. : Petitioners V/s. 1. Vithal S. Gaikwad, General Secretary, Bombay Electric Workers’ Union, 7, Tayabi Mansion, Ground Floor, 4 Dr.Batliwala Road, Parel, Mumbai--400 012. 2. BSES Limited, a public limited Company incorporated under the provisions of the Indian Companies Act, 1913, having its registered office and Corporate Office at BSES House, Santacruz (E), Mumbai--55. 3. V.P.Rothe, Member, Industrial Court, Maharashtra, at Mumbai. : Respondents ... Mr.S.S.Naphade i/b.A.K.Ovalekar for the petitioners. Mr.E.P.Bharucha with Ms Shobhana Gopal i/b. Mr.Kishore Shetty for respondent no.1. Mr.J.P.Cama with Mr.S.N.Shah i/b. Mr.K.P.Anilkumar for respondent nos.2 & 3. ... CORAM : F.I.REBELLO & S.R.SATHE,JJ. Date of reserving): 13.7.2004 the judgement ) Date of pronouncing): 1.10.2004 the judgement ) ORAL JUDGEMENT (Per Rebello,J.) 1. Both these petitions can be disposed of by this common 5 judgement as they impugn the order dated 11.2.2004. By that order, the learned Industrial Court, Mumbai, allowed the report filed under exh.O-12 by the Commissioner appointed by the Court and admitted it on record. By a further direction, the elected representatives were directed to take the charge of their posts as per the result declared by the learned Commissioner. 2. Writ Petition no.1674 of 2004 arises out of Application (ICTU) No.8 of 2002. Petitioner nos.2 and 3 herein were opponent nos.1 and 2. Petitioner no.1 was not a party. Respondent no.1 was original applicant no.1 and respondent no.2 was original opponent no.4. Original applicant nos.2 and 3 as also original opponent nos.3, 5, 6 and 7 are not parties to the petition. For the sake of convenience, Vithal S. Gaikwad is referred to as representing the "Gaikwad group", R.K. Kottary is referred to as representing the "Kottary group" and Felix D’Souza is referred to as representing the "D’Souza group". 3. Writ Petition no.1673 of 2004 arises out of the common order dated 11.2.2004. Petitioner nos.2, 3, 4 and 5 were opponent nos.4, 5, 6 and 7 in Application (ICTU) no.9 of 2002. Petitioner no.1 was not a party to the proceedings. 6 Respondent no.1 was not an opponent in the said application. Applicant nos.2 and 3 are not parties to the petition. Similarly, opponent nos.1, 2 and 3 are also not parties to the petition. 4. On facts as pleaded, it is set out that on 15.2.2000, elections were held for the posts of office bearers/members of the Bombay Electric Workers’ Union (hereinafter referred to as the "Union"). The case of the petitioners in Writ Petition no.1674 of 2004 is that Kottary along with his supporters were elected as office bearers of the Union. This was intimated to the Registrar of Trade Unions by the Union’s letter dated 16.2.2000. It is the case of the petitioners that Gaikwad and D’Souza groups did not reconcile to Kottary and his group and their elections and claimed that D’Souza and his supporters had been elected. It is the case of Kottary group that the dispute arose mainly between Kottary group and Gaikwad group regarding elections to the office bearers of the Union. Gaikwad group even approached the Industrial Court by filing Complaint (ULP) no.480 of 2001. The Industrial Court by its order dated 29.6.2001 directed respondent no.2 to approach the authority under section 28A(1) of the Trade Unions Act to establish its claim. The Gaikwad group also filed Civil Suit no.1611 of 2000 in 7 the Mumbai City Civil Court for various reliefs which, inter alia, included a declaration that Kottary and his supporters were not the elected office bearers of the Union. The suit was dismissed by an order dated 3.10.2000. 5. It is then contended that Complaint (ULP) no.610 of 2001 was filed against the Gaikwad group wherein an application was filed under section 32 of the MRTU & PULP Act, 1971 by the Gaikwad group praying that till the final disposal of the complaint, that Court be pleased to pass an appropriate order to the effect that the elections to the post of office bearers and other committee members of the said Union be held by secret ballot and certain persons be appointed as Election Officers. The said application was filed on 21.4.2001. Gaikwad made a statement that he did not want to pursue the same and, accordingly, that application was disposed of on 25.10.2001. Gaikwad then filed a Writ Petition on the Original Side of this Court, being Writ Petition no.2842 of 2001, seeking directions for quashing and setting aside the orders issued by the Registrar of Trade Unions. The petition was heard by a Division Bench of this Court which dismissed it on the ground that material facts were suppressed and false statements were made. Gaikwad group, 8 it is set out, then approached the Registrar of Trade Unions and sought a reference to be made to the Industrial Court for seeking relief against Kottary group. Two applications came to be filed, being Application (ICTU) nos.8 and 9 of 2002. By an interim order dated 27.3.2003, the Industrial Court allowed the D’Souza group and his panel to act as office bearers of the Union during the pendency of the complaint. It is contended that the Industrial Court was of the view that there should be someone to carry on the work of the said Union and, therefore, it was proper to allow Gaikwad to do that job. Against that order, Kottary group preferred a petition before this Court, being Writ Petition no.1435 of 2003. By an order dated 25.8.2003, a Division Bench of this Court was pleased to direct the Industrial Court to decide the main applications after finding out as to whether the Original Application filed by Gaikwad was rendered infructuous or not. It is set out that the Division Bench also observed that any fresh application for elections for the next term may also be considered within one month from the date of the order. 6. On 5.9.2003, during the course of hearing before the Industrial Court, the Industrial Court by consent of the parties, appointed one Mr.Gopalkrishnan, Advocate, as 9 Court Commissioner with directions to start the election process so as to complete the same by 31.10.2003. By a formal order dated 8.9.2003, the Industrial Court directed the Commissioner to conduct election fairly and impartially by updating the voters’ list and giving an opportunity to all the concerned parties and their members as per the constitution of the Union, the register of members maintained by the Union and inviting objections by the parties and their members. It is then set out that the Court Commissioner, however, acted in a biased manner. He accepted all the voters’ claim by Kottary group and their supporters for inclusion of their names in the voters’ list. By this process, more than 2023 objections were rejected on flimsy grounds, such as non-production of receipts for payments and non-intimation of the payment of subscription in the Bank to respondent no.1 by the members, though there were disputes regarding the office bearers. 7. Being aggrieved, Kottary group moved the Industrial Court on 5.11.2000 with a written application for setting aside the ruling of the Court Commissioner dated 21.10.2003. The Industrial Court by its order dated 7.11.2003 rejected the said application. Being aggrieved, Kottary group once again filed a petition before this 10 Court being Writ Petition no.2939 of 2003. During the pendency of the petition, the Court Commissioner declared uncontested results of the election on 13.11.2003, though according to the schedule and the order of the Industrial Court, the election had to be declared on 18.11.2003. As the election results had already been declared, the learned Division Bench of this Court, by its order dated 17.12.2003, disposed of Writ Petition no.2939 of 2003 with a direction to the Industrial Court to decide the matter on merits. It is submitted that this Court while disposing of the matter made it clear that the dispute with regard to the election can be agitated before the Industrial Court. 8. The Industrial Court then was seized of the matter and by order dated 11.2.2004 admitted the report filed by the learned Commissioner on record. The Industrial Court further directed that the elected representatives shall take the charge of their posts as per the results declared by the learned Commissioner. It is set out that the Industrial Court has observed that the remedy of the petitioners is to challenge the election as to approach the Industrial Court under section 28A(1) of the Trade Unions Act by obtaining the consent of the Registrar. The present petitions have been filed against the said 11 judgement and order of the Industrial Court dated 11.2.2004. 9. It may be further mentioned that Gaikwad group in the application filed has sought to contend that on 27.3.2003 the Industrial Court passed an interim order in Application (ICTU) nos.8 and 9 of 2002 holding that the Gaikwad group elected in the AGM held on 15.2.2000 and mentioned in the letter dated 16.2.2000 addressed by the Gaikwad group to the Registrar of Trade Unions was held to be legally elected office bearers of the petitioner-Union. It is pointed out that Kottary group had formed a new Union in the name of Mumbai Vidyut Kamgar Sangh. It is further set out that by the interim order, it was held that Kottary and Patil, petitioner nos.2 and 3 in Writ Petition no.1674 of 2004, were not even primary members of the Union. The order dated 27.3.2003 was challenged before this Court in Writ Petition no.1435 of 2003. The petition was disposed of without disturbing the order of the Industrial Court. 10. It is then pointed out that the Commissioner took charge of the election to the office bearers and members of the Managing Committee of the Union and finalised the voters’ list of the members who were eligible to 12 stand/vote in the elections after calling for objections. Around 2023 objections were received and the same were rejected after giving a hearing to the objectors. It is pointed out that every order was made after recording the notes of evidence and passing a speaking order. Nominations to the various posts were called for and after withdrawal, it was found that the contestants were equal to the number of posts for which elections were to be held and, hence, they were all declared to be elected on 13.11.2003. The Commissioner submitted his report to the Industrial Court on 18.11.2003. Kottary group filed a petition wherein personal and adverse allegations were made against the Commissioner. The petition was dismissed by an order dated 17.12.2003. Kottary group then moved a transfer application seeking transfer of the matter. That was dismissed on 24.11.2003 by the President of the Industrial Court. The Commissioner was cross-examined on the report. None of the petitioners stepped into the witness-box to substantiate the allegations made against the Commissioner nor was any evidence led to justify claims to be members of the Union. The Court as the record shows examined the Commissioner. The impugned order then came to be passed on 11.2.2004. From the documents on record, it would be clear that 7577 members’ names were included in the voters’ list and were given 13 voting rights; 4819 from BEST and 2758 from BSES Ltd. This was in terms of the voters’ list submitted by the Commissioner to the Industrial Court. 11. The learned counsel for the petitioners in Writ Petition no.1674 of 2004, firstly, submits that the Industrial Court was under total misconception of the order of this Court dated 17.12.2003 and refused to go into the merits of the election dispute on the ground that the remedy to challenge the election was to approach the Industrial Court under section 28A(1) of the Trade Unions Act, after obtaining the consent of the Registrar. It is, therefore, submitted that inasmuch as the Industrial Court refused to go into the election dispute, the order is required to be set aside. 12. It is then submitted that the Commissioner did not bring the voters’ list up-to-date by allowing the members to pay the subscription and, accordingly, update the members’ list, but on the contrary, rejected the application for the members for being included in the voters’ list on flimsy and unsustainable grounds. It is submitted that instead of following the direction of the Industrial Court, the Commissioner blindly relied upon the voters’ list prepared by Gaikwad who refused to produce 14 any reliable evidence of those persons having paid the subscription on the plea that he had been restrained by the City Civil Court from operating the Bank account. The rejection of objection filed on behalf of Kottary group was on flimsy grounds. Various instances have been set out. It is also pointed out that though according to the election rules, a voter had to pay subscription upto 30.9.2003, yet the employees of BEST, including Gaikwad, who had paid subscription only upto June 2003, were allowed to get registered as voters. It is then submitted that the Registrar of Trade Unions had not given his approval to the alleged resolution passed by the General Body for increase of subscription from Rs.5/- per month to Rs.10/-. Yet the members were prevented from giving their monthly subscription of Rs.5/- by Gaikwad and the Commissioner. It is then submitted that the Industrial Court ignored the important admissions made by the Commissioner in his evidence which included that the signatures of Kottary and Patil were not taken in token of their attendance of any of the meetings held by him as the Commissioner. It is lastly submitted that the elections held by the Commissioner is unfair, partial, undemocratic, unjust and illegal. The interest of justice requires that 15 a free and fair election of the office bearers of the Union be conducted under the supervision of this Hon’ble Court by appointing an independent person after giving an opportunity to all the members to pay all the arrears up-to-date and get registered as voters. On behalf of the petitioners in Writ Petition no.1673 of 2004 i.e. D’Souza group, the arguments advanced on behalf of Kottary group in Writ Petition no.1674 of 2004 have been adopted. 13. On behalf of Gaikwad group, it is submitted that the projection by Kottary group as the General Secretary and Treasurer is in gross violation of the order of the Industrial Court dated 27.3.2003 wherein it has been held that they are not the office bearers of petitioner no.1 Union and on this count, the petition ought to be rejected. It is then submitted that the Union and BSES Ltd. were not parties before the Industrial Court and they cannot be impleaded as parties. Similarly, elected persons have not been made parties. The petition, therefore, suffers from non-joinder of necessary parties. It is then set out that out of 2023 objectors, names of 178 persons are already mentioned in the voters’ list and, as such, their objections were meaningless. Kottary and 16 Patil on behalf of themselves and 15 others have stated that Gaikwad refused to accept their membership and, hence, they have deposited the amount in the account of the Union i.e. Account no.16243 in Canara Bank, Santacruz (East) Branch on 26.3.2002. It is submitted that if Kottary and Patil are claiming themselves to be the office bearers of the Union, there does not arise the question of accepting membership. All 17 are members of BEST undertaking and the payment of the Union subscription is made by check off and not direct payment. A cheque is issued by the BEST Undertaking and the same is handed over to the Union. The said cheque is deposited in the Bank Account at Dadar, Khodadad Circle Branch of the Union Bank of India. Similarly, the subscription amount collected from the employees of BSES Ltd. is deposited in Santacruz Branch of Canara Bank. There are separate accounts maintained for BEST and BSES employees. The amount alleged to have been deposited by Kottary on behalf of himself and 16 others was deposited in the Bank account pertaining to the employees of BSES Ltd. and not BEST Undertaking and no intimation with regard to the same was given to any of the office bearers of the Union. Even if it is the case of Kottary that he had deposited the membership subscription, that grievance could have been made to the Industrial Court when the Industrial Court in 17 its order dated 27.3.2003 held that Kottary and Patil were not even primary members of the Union. It is submitted that Kottary and Patil were aware of their names not being in the voters list as far back as 15.7.2004 when Gaikwad submitted the voters’ list updated till June 2004 to the Industrial Court and the copies of the same were given to the Kottary group. No objection was raised before the Industrial Court in this regard. It is submitted that the Commissioner had finalised the list of 7,577 members. In these circumstances, it is submitted that the petition ought to be dismissed. In addition, insofar as Writ Petition no.1673 of 2004 is concerned, it is submitted that petitioner nos.2 to 4 did not make payment as there were disparity in the membership subscription. The workers employed in BEST and BSES Ltd. paid Rs.5/-. It is submitted that petitioner nos.2 to 4 were office bearers of the Union when Resolution to that effect was passed on 15.2.2000. No notice has been given by the petitioners to pay the arrears and even as of now, they have not made any offer to pay membership fee. Even with regard to the contentions that Gaikwad did not take their subscription, it is submitted that petitioner nos.2 to 4 are claiming to 18 be office bearers of the Union and, as such, the question of making payment of subscription to respondent no.1 does not arise. Even assuming that Gaikwad had refused to accept the subscription of petitioner nos.2 to 4, they did not remit the same by post nor did they protest against the alleged refusal. The petitioners were aware that their names were in the voters’ list as far back as 15.7.2004. For the aforesaid reasons, it is submitted that the petition be dismissed. 14. With the above, we may now consider the objections as raised on behalf of the petitioners, firstly, that the learned Industrial Court refused to go into the election dispute on the ground that the power to challenge the election was to approach the Industrial Court under section 28A(1) of the Trade Unions Act. Section 28A of the Trade Unions Act, 1926 as amended in the State of Maharashtra reads as under:- "28A. Power of Industrial Court to decide certain disputes.-- When there is a dispute as respects whether or not any person is an office-bearer or member of a registered Trade Union (including any dispute relating to a wrongful expulsion of any such 19 office-bearer or member), or where there is any dispute relating to the property (including the account books) of any registered Trade Union, any member of such registered Trade Union for a period of not less than six months may, with the consent of the Registrar, and in such manner as may be prescribed, refer the dispute to the Industrial Court constituted under the Bombay Industrial Relations Act, 1946, for decision. (2) The Industrial Court shall, after hearing the parties to the dispute decide the dispute, and may require an office-bearer or member of the registered Trade Union, to be appointed whether by election or otherwise under the supervision of such person as the Industrial Court may appoint in this behalf or removed, in accordance with the rules of the Trade Union: Provided that, the Industrial Court may, pending the decision of the dispute, make 20 an interim order specifying or appointing any person or appointing a committee of Administration for any purpose under the Act including the purpose of taking possession or control of the property in dispute and managing it for the purposes of the Union pending the decision. (3) The decision of the Industrial Court shall be final and binding on the parties, and shall not be called in question in any civil court." It is thus clear from the statutory provisions that a dispute as respects whether or not any person is an office-bearer or member of a registered trade Union, with the consent of the Registrar be referred to the Industrial Court constituted under the B.I.R. Act. Under sub-section (3), the decision of the Industrial Court is final and binding on the parties and shall not be called in question in any Court. This Court while passing the order on 17.12.2003 was dealing with an interlocutory order of 7.11.2003. It was also noticed by the Court that election was also held and results of the same were declared on 13.11.2003. The observations in para 5 must 21 be considered in that context that the Industrial Court should go into those questions which were within its jurisdiction. It cannot be stated that this Court would direct the Industrial Court to assume jurisdiction in respect of a matter of which it had no jurisdiction, considering the language of section 28A(1), which had not been referred to it by the Registrar. Therefore, even at the highest, even if the observations are taken in the true and literal meaning, the order dated 17.12.2003 can be to agitate those disputes in respect of holding of elections. There is no positive finding recorded that the Industrial Court in the matter of elections can go into it, even if the matter is not referred to it in the manner set out under section 28A of the Trade Unions Act. In the instant case, we are concerned with the results of elections declared by the Commissioner on 13.11.2003 and the result accepted by the Court by its order dated 11.2.2004. We are clearly of the opinion that the first contention as raised on behalf of the petitioners will have to be rejected. Even if the Industrial Court had directed holding of elections, in terms of the order of the Court, it cannot go into the question of the validity of the elections, and issues like whether a person is an office bearer or a member. These are issues exclusively for the consideration of the Registrar