$33 gig“ ;x%G§% {XXIIRT OF CHHATTISGARH AT BILASPUR WRIT PETITIONéc } No. airm 0f 2009 Tapar1 Chatterjee Sjo Late Shri S.K. Chattarjee, aged about 69 / ycars, R/o Quarter No. T/ 1 1 [2, Railway Colony, Bilaspur (CG), Presiderit of South East Central Railway Mazdoor Congress, having its registered office at Bilaspur (CG? PETITIONER: Versus b. The General Manager, South East Central Railway, Zonal' f2 Office, Bilaspur (CG). 2. The Chief Personnel Ofiicer, South East Central Railway, Bilaspur (CG). 3. The Senior Divisional Personnel Officer, South East Central Railway, Nagpur , r/ Maharashtra. 4. The Divisional Railway MW? Manager (P), South East Central Railway, Raipur (CG) Ic/ 5 The Chief Workshop Manager RESPONDENTS: Wagon Repair Shop, South East Central Railway, Raipur /¥ (CG). £3 ‘ V" 6. Shri N.N.R. Acharya, Workshop Personnel Officer, AW :2 l ”A € ' Wagon East Central Repair Railway, Shop, Raipur South x (CG). 7. The Station House Officer, Police Station, Khamtarai, Raipur (CG). ” / @ (a WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) N0. 2754 of 2009 Tapan Chatterjee. ‘PETITIONER VERSUS ' The General Manager, South East Central Railway & Others. RESPONDENTS Post for pronouncement of order on ”Jigay ofAugust, 2010. 1‘ /- V aish K. Agnihggy, a Mn Juge Sd St d \\ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) No. 2754 of 2009 PETITIONFR : Tapan Chatterj ee. VERSUS RESPONDENTS The General Manager, South East Central Railway & Others. RIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. v Present: Shri Shailendra Dubey, Advocate for the petitioner. Ms. Naushina Afrin Ali, Advocate with Shri Sourabh Dangi, Standing Counsel for the Railways. ' ORDER (Delivered on. . i Jjhay of August, 2010) Heard Shri Shailendra Dubey; counsel for the petitioner and Ms. Naushina Afrin Ali, standing counsel for the Railways with Shri Sourabh Dangi, Advocate. The petitioner claims to be the president of South East Central Railway Mazdoor gangressVor short ‘the SECRMC ’). The petitioner-Union, by this petition seeks for a writ in the nature ofmandamus commanding the respondent No. 2 to’ 6 Vto withdraw the impugned notices/ communications dated 16.03.2009 (Annexure P/2), 7.4.2009 (Annexure P/3), 08.04.2009 (Annexure P/4) and 29.04.2009 (Annexure P/S), issued by the respondents-Railways: Further, not to disturb the peaceful possession of the aecommodation provided by the respondents- W Railways to the petitioner-Union at different places and to direct the respondent No. 1 to initiate proper proceedings against the respondent No. 6. The brief facts, in nutshell is that the petitioner claims to be president of SECRMC recognized and affiliated to N.F.I.R., I.N.T.U.C. and I.T.F. London, having its registration No. 78 and its Head Office at Bilaspur. The petitioner—Union is one of the oldest union established in the year 1953. The petitioner-Union was provided the facilities of accommodation, electricity, telephone etc. on payment. Offices of the petitioner-Union are functiohing at Bilaspur, Raipur, Nagpur and various other places. The respondent No. 1, wrote a letter dated 11.12.2007 to the petitioner-Union that the petitioner-Union has not secured 30% 0r more of the single vote of the total electorate or 35% of the valid votes polled and the petitioner-Union secured only 24.25% 'votes of the total electorate and 28.69% of the valid votes, thus, all the privileges/facilities extended to the petitioner-Union at Headquarters/ Division/Workshop/Units stood withdrawn. In reply, by way of legal notice dated 17.12.2007 (Annexure P/l), the petitioner-Union submitted that the notie’e withdrawing facilities by letter dated 11.12.2007, was illegal, arbitrary andthe same may be recalled. Subsequently, by impugned letter dated 16.3.2009 (Annexure P/2), it was intimated to the petitioner-Union that except the branch accommodation allotted to WRS Branch of the Union, no other accommodation has been vacated. It was therefore again requested to takenecessary steps to vacate all the office \ r: accommodation which were still in possession of the petitioner-Union by 31.03.2009 to avoid further course of action. The communication dated 07.04.2009 (Annexure P/3) of Senior Divisional Personnel Officer, SECR, Nagpur, was sent to the Executive Divisional Coordinator, SECRMC, advising the petitioner—Union to vacate the office accommodation of all branches upto 30.04.2009. One more communication was sent on 08.04.2009 (Annexure P/4) which was addressed to Shri Dinesh Singh Thakur, Technician Grade I, T.No. 11131, to ensure vacation of accommodation in possession of the petitioner-Union . Thereafter; on 29.04.2009 (Annexure P/5), furthe ime was extended till 17th May, 2001 to vacate the Union building. Thereafter, this petition as filed challenging the above stated notices/communications. Shri Dubey, learned counsel appearing for the petitioner-Union would submit that the petitioner-Union is a registered Union and second largest and one of the oldest trade unions in South East Central Railway zone. The impugned notices/communications have been issued by the respondent No. 2 to 5 to pressurize the petitioner-Union to vacate the accommodation provided by the Railway authorities on the ground that the petitioner-Union has failed to secure 30% or more of the single vote of the total electorate or 35% of the valid votes polled and the petitioner-Union secured only 24.25% votes of the total electorate and 28.69% of the valid votes, for recognition of the petitioner—Union. The next contention is that there was no condition to obtain 30% or more r t 6 single votes of the total electorate or 35% of the valid votes polled and as such, the same cannot be made a pre-condition for recognition as well as for granting facilities to the petitioner-Union, as aforestated. The issue of recognition is under challenge before the Allahabad High Court, thus, no decision could have been taken by the respondent authorities directing the petitioner-Union to vacate the accommodation and other facilities being granted to them earlier on the ground thatthe petitioner- Union did not continue to be recognized union, for dispossession of the petitioner-Union from the accommodation and withdrawal of other facilities could have been done in accordance with law by referring the dispute to the Estate Officer. The same has not been done. Thus, the entire exercise of the respondent No. 2 to 5 was illegal, arbitrary and discriminatory. On the other hand, Ms. Naushina Afrin Ali, standing counsel for the Railways, appearing with Shri Sourabh Dangi, Advocate, would submit South East Central Railway was carved out from the erstwhile South Eastern Railway on 01.04.2003. The petitioner-Union was recognized Union till it was de-recognized on 03.12.2007, consequent to their failure to secdre the stipulated number of votes in the Secret Ballot held from November 26th to 28th, 2007. The recognized Railway Union alone are entitled to certain facilities on payment of normal charges as rent, electricity, telephone charges, faxes, card passes for rail travel etc. in order to maintain smooth communication between the administration and the recognized, Unions. The facilities were granted to the petitioner- u Union on 10.04.2003 on being properly recognized. The Railway administration is competent to direct the un-recognized Unions to vacate the accommodation due to change of its status as in the election, they failed to secure minimum 30% or more of the single vote of the total electorate or 35% of the valid votes polled and the petitioner—Union secured only 24.25% votes of the total electorate and 28.69% of the . valid votes. The General Secretary, SECRMC, vide letter dated 20.12.2007 (Annexure R/l), requested the administration to permit retention for three months and also informed that they were in search of accommodation. Further request was made for permitting the petitioner- Union to retain the accommodation and other facilities till 10.06.2008. This was also considered and the petitioner-Union was granted time upto 10.06.2008. Under para 1905 of the Indian Railway Engineering Code (for short ‘the Code’),lit is a policy of the Railways to allot accommodation on rent and other facilities only to the recognized Unions. The petitioner-Union cannot take shelter of pendency of other matters as the petitioner-Union is not entitled to retain the official accommodation and other facilities which are granted only to the. recognized trade Unions. The criteria of granting accommodation and other facilities is not the year of recognition or the date of constitution of the Union, but the only Criteria is that the recognized Union is entitled to certain facilities under para 1905 ofthe Code. On perusal of the pleadings and documents appended thereto, it is evident that since the petitioner-Union could not secure the minimum qualifying votes for being‘a recognized Union, the respondent No. 2 to 5 had sent various notices/communications to the petitioner—Union for vacating the accommodation and other facilities provided by the Railways. The petitioner-Union, in tum wrote to the respondents to grant extension and permission to retain the official accommodation and other facilities for some more period as they were in search of some alternative accommodation. The said request was reiterated again and again and lastly, the petitioner-Union was allowed to retain the accommodation and other facilities till 10.06.2008. As per Railway Board’s letter No. E(LL) 78 WPM/2-8 dated 29.12.1978, the recognized trade unions, in addition to other facilities are entitled to following facilities: "(i) Telephone (both Rly. and P&T) (ii) Secretarial Assistance, within Railways own resources (Ref: Rly. Bd’s letter No. E(LL) 77 WPM/2- 2 dt. 05.11.77. (iii) Office accommodation in the zonal/Divil.Hd.Qrs. Office building (Ref: Rly. Bd’s letter No. E(LL) 77 WPM/2-2(C) dt. 20.07.78,)” Modalities for conducting secret ballot for the purpose of granting recognition to registered railway trade unions representing all categories of Group ‘C’Iahd Group ‘D’ employees of Indian Railways, in clause 5 provides for norms for recognition, which reads as under: u “5. Norms for recognition: i) All unions getting 30% or more of the single vote of the total electorate shall be considered recognized. ii) If only one union gets 30% or more of the single vote of the total electorate and some other union polling next maximum number of votes, gets at least 35% of the valid votes 6/7 polled, then both these unions will get recognition. (This assumes that 35% of votes polled will be less than 30% of the total electorate). If situation as stipulated in (i) and (ii) above don’t arise, then the two unions getting maximum number of votes Will be recognized provided each one individually gets more than 35% of the valid votes polled. In case there is no union fulfilling the conditions laid down in (i), (ii) and (iii) above, then union which gets maximum number of valid votes polled will be recognized provided it gets at least 20% of the valid votes polled. In this case only one union will get recognized. If no union gets even 20% of valid votes polled, then no union will stand recognized.” iii) V) 8. The secret ballot was held on 26th, 27th and 28m November 2007 as per schedule. On counting of votes, the result was declared as under: XXX XXX v) If no union gets even 20% ofvalid votes polled, then no union will stand recognize. XXX XXX xxx xxx , \ \ S.No. Name of the Union Total Valid Votes Votes Votes with (RegistrationNo.) Electorate Votes obtained obtained obtained cast by the Union as %age of as %age of votes Electorate cast 1 Dakshin Purva Madhya Railway Mazdoor Sangh Reg. No. 79 (Raipur) \O g o“ -<r (\l S w m 4080 10.14 12.00 918 2.28 2.70 2 Rail Kamgar Sena Reg. No. ALC/Karyasan/17/9630 (Mumbai) 3 Rail Mazdoor Union Reg. No. ('B}Y-ll-7867> (Mumbai) 1067 2.65 3.14 9758 24.25 28.69 4 South' East Central Railway Mazdoor Congress Reg. No. 78 (Raipur) 18189 45.19 53.48 5 ' South East Central Railwaymen’s Union Reg. No. 57 (Rajpur) Yours faithfully, Sd/- ' Illegible (Prad¢ep Kumar) General Manager.” South East Central Raiaymens lw’ Union , Regisatio trn No. 57, Raipur got 45% d other Unions including the petitioner-Union got less than an the required 0% of he total electorate ad 35% f the votes poed. 3 t n o ll Thus, ther is o hesitation in holdg that the petitioner-Union was ot e n in n a recognized Unio If the petitioner-Union was not recognized Union, n. the i wa not etitle t y facilits. t s nd o an ie The pettioner-nion has failed produ ny ircular/ notificon/memo or any th document showin that the petitioner- Union as a ight to be a allotted accommodation d other facilities as h r an grantd to recgnized te unions, whether the pitner-Unin as e o rad etioo w recognized trade union or otherwise. The petitioner has right seeking no infrinement of the h whatsoever, under the exraordar g rigt, tiny jurisdiction o he Hig Court uder Article 26 of the Cstituion India. It appears to be a policy of the Railway administration to provide / accommodation and Other facilities like electricity, telephone charges, faxes, card passes for rail travel etc. to the recognized trade unions which represent the members of the recognized trade unions. It is well settled principle of law that unless the policy is capricious and not being informed by any reason whatsoever, the Court should not interfere with the policy decision ofthe Government. D iU to ce a c ati oer g f t h n 2 ont of ” \ 12. In MP.0il Extraction and Anather v. State ofMP. & Others], it was observed as under: “41. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India.” It is further a trite law that in absence of constitutional, statutory or other rights, the writ proceedings would not lie to enforce other obligations. In the case on hand, nothing has been shown that any statutory, legal or constitutional right has accrued in favour of the petitioner-Union which was registered for a long period as trade unio particularly when on subsequent election held on 26m, 27m and 28m of October, 2007, the petitioner-Union failed to secure the minimum votes / for recognition, and as such was derecognized. In View of the foregoing and for the reasons stated hereinabove, the writ petition is dismissed. There shall be no order asto costs. : Sdl- Satish K. Agnihotr Judge W / (W’f 1 (1997) 7 SCC 592 n