IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 06.01.2009 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN WRIT APPEAL No.2333 of 2003 and WRIE PETITION Nos. 4704 to 4707 of 1999 and W.P.M.P.Nos.4906,4907,380 and 381 of 2006 W.A.No.2333 of 2003 The Director (SR/WC) O/o. Director General (Posts) New Delhi – 110 001. ... Appellant/Respondent -vs- All India Rural Postal Employees Union Rep. By its General Secretary S.Meetparaj Mascarnass, Koothakudi Post, Idinthakarai, Tirunelveli District. ... Respondent/Petitioner Writ appeal filed under Clause 15 of the Letters Patent against the order dated 9.04.2003 made in W.P.No.20598 of 2000 Writ of certiorarified mandamus to call for the records of the respondent in letter No.13-36/2000 SR dated 29.6.2000 and consequential letter dated 15.9.2000 quash the same and direct the respondent to grant re-cognition to the petitioner union based on the application of the petitioner dated 29.12.1998. For appellant : Mr.S.Udaya Kumar, SCGSC For respondent : No appearance W.P.No.4704 of 1999 Bharatiya Postal Employees Union No.2322/1978 (Class III) Rep. by its Asst. General Secretary Madras. .. Appellant -vs- https://hcservices.ecourts.gov.in/hcservices/ 1. Union of India Ministry of Communications Rep. by its Secretary Dak Bhavan, New Delhi – 110 001. 2. Union of India Ministry of Home Affairs Rep. by its Secretary Department of Personnel, New Delhi. 3. The Secretary Department of Posts, New Delhi – 110 001. 4. The Director (Staff Relations) Department of Posts, Dak Bhavan, New Delhi – 110 001. 5. The Chief Post Master General Tamil Nadu Circle, Chennai – 600 002. 6. All India RMS/HMS Assistant Superintendents and Inspectors Association Rep. by its General Secretary, Chennai – 27. 7. All India Postal Employees Union Group C (CHQ) Rep. by its General Secretary Dada Ghosh Bhawan, No.1, Patel Road, New Delhi – 110 008. 8. National Union of Postal Employees Group C (CHQ) Rep. by its Asst. General Secretary, 37, Gandhi Road, Jai Nagar, Arumbakkam, Chennai – 106. ... Respondents (R6 impleaded as per the order of this court, dated 26.12.2002 made in W.P.M.P.No.47020 of 2002) (R7 and R8 impleaded as per the order of this Court, dated 16.04.2004 made in W.P.M.P.No.28856 of 2003) https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India, praying to call for the records of the fourth respondent, pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the fifth respondent and quash the order by issuing a writ of Certiorarified mandamus and consequently direct the respondents to set in motion the verification process either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. W.P.No.4705 of 1999 Bharatiya RMS/MMS Employees Union No.2379/1978 (Class III) Rep. by its Asst. General Secretary Madras. ... Appellant -vs- 1. Union of India Ministry of Communications Rep. by its Secretary Dak Bhavan, New Delhi – 110 001. 2. Union of India Ministry of Home Affairs Rep. by its Secretary Department of Personnel, New Delhi. 3. The Secretary Department of Posts, New Delhi – 110 001. 4. The Director (Staff Relations) Department of Posts, Dak Bhavan, New Delhi – 110 001. 5. The Chief Post Master General Tamil Nadu Circle, Chennai – 600 002. .... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to call for the records of the fourth respondent, pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the fifth respondent and quash the order by issuing a writ of Certiorarified mandamus and consequently direct the respondents to set in motion the verification https://hcservices.ecourts.gov.in/hcservices/ process either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III BRMS Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. W.P.No.4706 of 1999 Bharatiya Postal Employees Union Postmen & Group D Rep. by its Asst. General Secretary Madras. ... Appellant -vs- 1. Union of India Ministry of Communications Rep. by its Secretary Dak Bhavan, New Delhi – 110 001. 2. Union of India Ministry of Home Affairs Rep. by its Secretary Department of Personnel, New Delhi. 3. The Secretary Department of Posts, New Delhi – 110 001. 4. The Director (Staff Relations) Department of Posts, Dak Bhavan, New Delhi – 110 001. 5. The Chief Post Master General Tamil Nadu Circle, Chennai – 600 002. 6. All India Postal Employees Union Postmen & Group D Rep. by its General Secretary 30/3D, Post Quarters, Kali Bari Marg, New Delhi – 110 001. 7. National Union of Postal Employees Postmen & Group D (CHQ) Rep. by its Asst. Treasurer No.15, V.M.Street, II Lane, Royapettah, Chennai – 14. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ (R6 and R7 impleaded as per order of this Court, dated 16.04.2004 made in W.P.M.P.No.28857 of 2003) Writ Petition filed under Article 226 of the Constitution of India, praying to call for the records of the fourth respondent, pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the fifth respondent and quash the order by issuing a writ of Certiorarified mandamus and consequently direct the respondents to set in motion and the verification process either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class IV Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. W.P.No.4707 of 1999 Bharatiya Postal Administrative Officers Employees Union, Group 'C' and 'D' Rep. by its General Secretary, Madras. ... Appellant -vs- 1. Union of India Ministry of Communications Rep. by its Secretary Dak Bhavan, New Delhi – 110 001. 2. Union of India Ministry of Home Affairs Rep. by its Secretary Department of Personnel, New Delhi. 3. The Secretary Department of Posts, New Delhi – 110 001. 4. The Director (Staff Relations) Department of Posts, Dak Bhavan, New Delhi – 110 001. 5. The Chief Post Master General Tamil Nadu Circle, Chennai – 600 002. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India, praying to call for the records of the fourth respondent, pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the fifth respondent and quash the order by issuing a writ of Certiorarified mandamus and consequently direct the respondents to set in motion and the verification process either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. For petitioner : Mr.V.Prakash, Senior Counsel for M/s. Ayar and Dolia in all the writ petitions For respondents : Mr.S.Udayakumar, SCGSC for R1 to R5 in all the writ petitions Mr.M.Suresh Kumar for R6 in W.P.No.4704/99 Ms.R.Vaigai for R7 and R8 in W.P.No.4704/99 and R6 and R7 in W.P.No.4706 /99 COMMON JUDGMENT S.TAMILVANAN, J The Writ Appeal in W.A.No.2333 of 2003 has been preferred against the order, dated 09.04.2003 passed by the learned Single Judge in W.P.No.20598 of 2000, whereby it has been held that there is no impediment on the part of the appellant herein, who was the respondent in the writ petition, to verify the application submitted by the respondent, on the ground that the reasoning given by the appellant, by order, dated 29.06.2000 could not be sufficient to non-suit the respondent, from seeking the relief, as prayed for in their applications. With the above observation, the appellant herein was directed to process the application, dated 29.12.1998 filed by the respondent, as being done in other cases and keep it pending and pass appropriate orders, as per the outcome of the result of the writ petitions in W.P.Nos.4704 to 4707 of 1999. 2. The writ petition in W.P.No.20598 of 2000 was filed by the petitioner Union, who is the respondent in the writ appeal, seeking to issue a writ of certiorarified mandamus, calling for the records of the order of the appellant / respondent in Letter No.13-36/2000/SR, dated 29.05.2000 and the consequential order, dated 15.09.2000 and quash the same and also to direct the respondent therein to grant recognition to the petitioner union, based on the application, dated 29.12.1998. 3. It is seen that the respondent herein as petitioner in the writ petition has averred that he is the General Secretary of the respondent's union, having object to ventilate the grievances and demands of the Extra Departmental Agents of the Postal Department. It is https://hcservices.ecourts.gov.in/hcservices/ further stated that the Extra Departmental Employees have decided to form an independent forum to discuss their problems with the Government and to get the recommendations being implemented and accordingly, with the said object, the Union submitted an application to get recognition from the Government of India (Postal Department). According to the respondent, their union is having membership in the Tamil Nadu Region, which is more than 10% of the total strength of the Extra Departmental Agents of India as a whole and submitted all the proposals and applied for recognition to the appellant herein on 29.12.1998 and certain defects were sought to be rectified and the same were complied with, as directed by the appellant. The respondent has submitted that the defects pointed out by the appellant were rectified and the proposal was re- submitted for consideration, however, the appellant did not pass any order. But by order, dated 12.01.2000, the appellant intimated that the status of the Unions, after expiry of two years period of recognition is under consideration and till such time, re-verification process for the purpose of recognition of Unions / Associations is kept in abeyance. 4. Then, the respondent / petitioner was informed by order, dated 29.06.2000, that the last date was 31.05.2000 for submitting application for participation in the verification process for the purpose of recognition under EDA (RA) Rules, 1995. The application of the respondent was received after the due date, that is on 21.06.2000 and thereby negated that the respondent could not be allowed to participate in the verification process for the time being, since the application was submitted after the last date. The said order was challenged in the writ petition. The respondent herein had sought for an order to quash the order passed by the appellant herein and to direct the appellant to grant recognition to the respondent union, based on the application of the respondent, dated 29.12.1998. As per the impugned order, under challenge, there was no total rejection of the respondent's application and the order was passed only for the time being, since the appellant had expressed inability to accept the application for verification process after the due date. 5. Learned counsel appearing for the respondent in the writ petition submitted that batch of writ petitions in W.P.Nos.4704 to 4707 of 1999 etc., were pending before this Court with regard to the same issue as to the recognition sought for by several other unions, like that of the petitioner and interim orders were passed in those writ petitions. In support of the same, copies of certain interim orders passed by this Court in the earlier writ petitions were produced. It has been found by the learned Single Judge that in none of the interim orders, as stated by the learned counsel for the appellant herein, the date 31.05.2000 was stated to be the crucial date and in one of the order, dated 30.08.1999, this Court passed an order to the effect that 'the verification process may go on and the result may be published after getting permission from this Court'. In the above circumstances, the learned Single Judge, has directed to process the application of the respondent, dated 29.12.1998, as being done in the other cases. https://hcservices.ecourts.gov.in/hcservices/ 6. W.P.No.4704 of 1999 has been filed under Article 226 of the Constitution of India by Bharatiya Postal Employees Union against Union of India, Ministry of Communications, New Delhi and others to call for the records of the Director (Staff Relations), Department of Posts, Dak Bhavan, New Delhi – 110 001, the fourth respondent herein pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the Chief Post- Master General, Tamil Nadu Circle, Chennai, the fifth respondent herein and quash the said order, by an order of Certiorarified Mandamus and direct the respondents to set the verification process in motion, either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III Employees of the Postal Department by an independent officer in the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions are concerned. 7. W.P.No.4705 of 1999 has been filed by Bharatiya RMS/MMS Employees Union against the respondents, seeking similar orders in the nature of Certiorarified Mandamus. 8. W.P.No.4706 of 1999 has been filed by Bharatiya Postal Employees Union against the respondents, seeking similar orders in the nature of Certiorarified Mandamus. 9. W.P.No.4707 of 1999 has been filed by Bharatiya Postal Administrative Officer's Employees Union, Group C and D against the respondents, seeking similar relief, by way of issuance of an order of Certiorarified Mandamus. 10. In the Grounds of appeal, the appellant herein has stated that the writ petitions are not legally maintainable, on the ground that the application, dated 29.12.1998 had been submitted by the respondent Union, which could not be considered for the year 2000. The appellant has further stated that the application of the respondent union, dated 17.06.2000 was received by the Appellant Department only on 21.06.2000, much after the cut-off date, 31.05.2000, though the verification process of the Appellant Department had already been over, pursuant to the notification of the interim order passed in W.P.Nos.4704 to 4707 of 1999. According to the appellant, the application, dated 29.12.1998 submitted by the respondent could not be processed practically, as the verification process had already been over. The appellant has further stated that the respondent union had not submitted their application for recognition within the prescribed time limit, the same was not considered in the impugned order passed in the writ petition. The appellant has stated that the last date for submitting application was 31.05.2000, however, the application of the respondent union was received only on 21.06.2000, much after the cut-off date, hence, the writ petition filed by the respondent / petitioner is not legally sustainable. https://hcservices.ecourts.gov.in/hcservices/ 11. In W.P.No.20598 of 2000, All India Rural Postal Employees Union, the petitioner therein has sought an order to issue a writ of certiorarified mandamus, calling for the records relating to the order of the respondent, who is the appellant herein in Letter No.13- 36/2000/SR, dated 29.05.2000 and quash the said order and the consequential order, dated 15.09.2000 and also direct the appellant in W.A.No.2333 of 2003 to grant recognition to the respondent union, based on the alleged application, dated 29.12.1998. The learned single Judge, by the impugned order, dated 09.04.2003, directed the appellant herein to process the application, dated 29.12.1998, as being done in the other cases and keep it pending and pass appropriate orders, as per the outcome of the result of the writ petitions in W.P.Nos.4704 to 4707 of 1999. 12. In the writ petition in W.P.No.4704 of 1999, Bharatiya Postal Employees Union, the petitioner therein, has sought relief, by way of issuing a writ of certiorarified mandamus, to call for the records, relating to the fourth respondent, Director (Staff Relations), Department of Posts, Dak Bhavan, New Delhi – 110 001, pertaining to Communication No.13-31/98 SR, dated 09.02.1999 together with Communication No.SR/1-11/98-99, dated 12.02.1999 of the Chief Post- Master General, Tamil Nadu Circle, Chennai, the fifth respondent herein and quash the said order and also direct the respondents to set in motion the verification process , either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. 13. In the writ petitions, W.P.No.4705 of 1999 filed by Bharatiya RMS/MMS Employees Union, W.P.No.4706 of 1999 filed by Bharatiya Postal Employees Union, W.P.No.4707 of 1999 filed by Bharatiya Postal Administrative Officer's Employees Union, Group C and D, have sought for similar orders, to quash the order passed by the fourth and the fifth respondents and direct all the respondents to set in motion the verification process , either by secret ballot or by entrusting the task of scrutinizing the option / authorization forms given by the Class III Employees of the Postal Department by an independent officer of the rank of Divisional Superintendent in the matter of deciding the representative capacity of the Unions concerned. 14. Ms.R.Vaigai, learned counsel appearing for the respondents 7 and 8 submitted that in the matter of the recognition of trade unions, verification of the applications and the details furnished therein are necessary factors, however, secret ballot method cannot be adopted for the same. In support of her contention, the learned counsel cited a Three Judge Bench Decision of the Hon'ble Apex Court in, Assn. of Engg. Workers vs. Dockyard Labour Union, reported in 1995 Supp (4) SCC 544, wherein the Hon'ble Supreme Court has held as follows : https://hcservices.ecourts.gov.in/hcservices/ "2... Even if the method of secret ballot is restored with the consent of parties and care has been taken to see that only those employees who had put in more than six months of service were allowed to cast their preference for the purpose of determining allegiance that was not a proper method for verification of the condition required for recognition under Section 11 and hence, it was a method which was clearly alien to the statute..." 15. In the grounds of appeal, the appellant has stated that the application of the respondent, All India Rural Postal Employees union, dated 29.12.1998 for recognition of the union could not be considered for the year 2000 and the application of the respondent, dated 17.06.2000, which was received by the appellant department only on 21.06.2000, much after the cut-off date, 31.05.2000. On the date of receipt of the application on 21.06.2000, verification process of the appellant department had been over, pursuant to the modification of the interim order, passed in W.P.Nos.4704 to 4707 of 1999. According to the learned counsel appearing for the appellant, having found that the impugned order is not the one totally rejecting the application of the respondent union, but was only for the time being and also considering the inability expressed by the appellant that the verification process could not be complied with, after the cut off date, the writ petition should have been dismissed by the learned single Judge. Mr.S.Udayakumar, SCGSC, learned counsel for the appellant mainly submitted his argument that the verification process of applications had already been over. Though the last date for the submission of the application for the participation in the verification process was 31.05.2000, the appellant had submitted the application, only after the said date. The application was received only on 21.06.2000, after the cut off date, 31.05.2000. Therefore, the verification process was practically not possible by the appellant. 16. Mr.V.Prakash, learned senior counsel appearing for the writ petitioners submitted that all the petitioner unions are trade unions, registered under the Trade Union Act. The Class III (Group C) staff working in the postal department, all over India are the members in the union. Prior to 1997, the postal department recognised the service association / unions. Originally, there was existence of Central Service Rules (Recognition of service association) 1959. Till 1997, the petitioner was the union recognized by the respondent postal department representing Class III (Group C) employees of the postal department, however, the rules were superceded by the Central Service (Recognition of service association) Rules, 1993. The Government of India purported to have brought the same into force by virtue of the powers vested in the President of India, under Article 309 of the Constitution of India. The recognition and concomitant privileges and facilities are afforded only to service associations / unions and not the employees. Rule 4 of the recognition rules extended the life time to existing recognised https://hcservices.ecourts.gov.in/hcservices/ service associations / unions for particular period / periods, subject to the condition that they should follow the procedures prescribed under the relevant rules for getting recognition as per the Recognition Rules 1993. 17. It is submitted that rule 5 of the Recognition Rules prescribe conditions for recognition of service associations, 'inter alia', it specifies that service associations should be restricted to a distinct category of Government service having common interest and sub clause d (i) of Rule 5 prescribes, "The association represents minimum 35% of total number of category of employees, provided that where there is only one association which commands more than 35% membership, although, an association having less than 35% may also be recognised, if it commands at least 15% membership"; Rule 6 provides the condition, subject to which recognition is continued and Rule 7 provides for the verification of membership. In order to determine the representative character on the capacity of the service association, operating in the Government Departments, check-off system in pay rolls at such intervals and in such a manner as the Government may pass orders, prescribing conditions, resort to on account of the haphazard and methods adopted by the respondents in making verification and as such, the petitioner unions were declared to have lost their representative capacity to represent Class III employees in 1997 and that Rule 8 of the Recognition Rules provides for the withdrawal of Recognition. 18. The writ petitioners have challenged the communication of the fourth respondent as arbitrary, irregular and untenable. The learned counsel appearing for the writ petitioners mainly contended that the present method of entrusting option / authorization forms to the drawing and disbursing officer and allowing them to decide as to which union the employees belong to is highly arbitrary and violative of Article 14 of the Constitution of India. According to the learned counsel for the petitioners, the drawing and disbursing officers are also being members of their union / association and may seek to divert option forms in favour of the union / association to which they belong and in which they are members. The impugned communication is challenged on the ground that it does not constitute an independent, impartial, election machinery to decide the representative capacity and character of the unions concerned and further contended that the check off system has lost its appeal and so the secret ballot system is found to be a full proof method. Even if check off system were to be continued as per Rule, the custody of option / authorization forms must be with an impartial higher rank officer like Divisional Superintendent and he must decide the membership of the employees based on such option / authorization letter and the same should not be left to disbursing officers, who have their own leanings towards their unions / associations in which they are members. 19. It was further contended that in the postal department, the employees are given option / authorization forms by more than one union, who participate in the exercise, which is making a mess of the system. https://hcservices.ecourts.gov.in/hcservices/ The next point raised by the learned Senior Counsel is that the impugned order cuts the root of the maintenance of 'secrecy" in the matter of ascertaining the decision of the employees, as to which of the unions / associations they belong to and ultimately in deciding as to which union / association has the representative capacity, as contemplated under Rule 5 (d) (i)