THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.22005 of 2007 Dated: 06.02.2008 Between B.Laxman Naik and two others …Petitioners And Nuclear Fuel Complex, rep. by its Chief Executive Engineer, Moula-Ali, ECIL Post, Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.22005 of 2007 ORDER: Heard Dr.P.B.Vijaya Kumar, learned counsel representing the writ petitioners, Sri A.Rajasekhara Reddy, learned Assistant Solicitor General of India representing the first respondent, and Sri V.Jagapathi, learned counsel representing the second respondent. 2. At the request of the learned counsel on record, the writ petition is being disposed of finally. 3. This Court issued rule nisi on 12.10.2007 and granted interim direction for limited period, which is being extended from time to time. 4. W.V.M.P.Nos.3017 of 2007 and 121 of 2008 are filed to vacate the interim order, dated 12.10.2007, passed by this Court in W.P.M.P.No.28513 of 2007. 5. The writ petition is filed for issuance of a writ of mandamus declaring the proceedings vide NFC/IR-2007/CMC/267, dated 06.10.2007 and proceedings vide NFC/CAO/CMC/2007/268, dated 06.10.2007 of the first respondent, as arbitrary and illegal and to quash the same by directing continuance of the petitioners as members of Canteen Managing Committee till completion of their tenure and to pass such other suitable orders. 6 . Dr.P.B.Vijaya Kumar, learned counsel representing the writ petitioners, had taken this Court through the contents of the affidavit, filed in support of the writ petition, and also had pointed out to Sections 23 and 46 of the A.P. Factories Act, 1948 (hereinafter referred to as ‘the Act’ for short) and Rule 70 of the A.P. Factories Rules, 1960 (hereinafter referred to as ‘the Rules’ for short) and would maintain that in the facts and circumstances of the case, inasmuch as the impugned action is totally in contravention of the relevant Executive instructions, which are specified Rules, inasmuch as they are not statutory rules, as such governing this field though they are General Rules. The contravention of the Executive instructions also may be gone into and hence the writ petitioners are bound to succeed. The learned counsel also made elaborate submissions pointing out the relevant Executive instructions and further specifically had drawn attention of this Court to several of the material papers. 7. On the contrary, Sri A. Rajasekhara Reddy, learned Assistant Solicitor General, would submit that a writ of mandamus would not lie in a matter of this nature and the petitioners having been unsuccessful in the elections cannot make such a challenge and even otherwise the Rules which had been specified in the affidavit, filed in support of the writ petition, are not applicable at all. The learned Assistant Solicitor General also would maintain that in the light of the facts and circumstances, this is not a fit case for a writ Court to interfere with while exercising the power of judicial review. 8 . Sri V.Jagapathi, learned counsel representing the second respondent, had taken this Court through the counter-affidavit filed on behalf of the second respondent and also had explained how the petitioners have no locus standi. The learned counsel would also maintain that without challenging the elections, the present writ petition cannot be maintained. The Executive instructions are only Executive instructions and even if the Executive instructions are to be taken there being no contravention these questions normally not to be gone into in a writ petition, and hence, the writ petition is liable to be dismissed. 9 . Heard the learned counsel and perused the entire material available on record. 10. The first petitioner has sworn to the affidavit filed in support of the writ petition. It is stated that the petitioners are the members of the second respondent Trade Union and they were appointed on being nominated as members of Canteen Managing Committee in Nuclear Fuel Complex (NFC) by proceedings dated 26.06.2007 along with two other persons representing the workmen. The Canteen Managing Committee is constituted by virtue of Rule 70 of the Rules and the term of the said committee as per Rule 70(5) of the Rules is two years. This committee is constituted in order to maintain quality and quantity of the food stuffs and timely meals besides other purposes and the canteen operating in the first respondent establishment is a statutory canteen under Section 46 of the Act, for which the first respondent provides subsidy and other benefits as provided under Rules 65 to 71 of the Rules. In this context it is not out of place to submit that the management of the first respondent by their letter dated 02.12.2006 conceded that the recommendations of SIU on the review of the norms for non-statutory departmental canteens are not applicable to NFC canteen. It means that the same is a statutory canteen under Section 46 of the Act. 11. While the matter stood thus, anticipating a move to displace the petitioners with the unofficial respondents consequent upon the recent election held for the second respondent union on 18.08.2007, the petitioners made a representation dated 22.09.2007 for their continuance, but the same has been rejected by the office of the first respondent on 06.10.2007 on which date respondents 3 to 8 have been appointed as members of the Canteen Management Committee in their place, reconstituting Canteen Management Committee. 12. It is also averred that the impugned action of the respondents in reconstituting the managing committee substituting the petitioners with the unofficial respondents is arbitrary, illegal, that too within a span of nine months. The constitution of Canteen Management Committee is not at the whims and fancies of the union, but is regulated by the Rules framed under the Act, otherwise the members may be substituted quiet frequently by the first respondent on the request of the union. Even assuming for a while that the “administrative instructions on departmental canteens in offices and industrial establishments of the governments” 1988 issued by the Government of India are applicable, under para 6.10, the tenure of the managing committee shall be normally for three years duration. In such circumstances, the writ petitioners approached this Court praying for appropriate relief. 13. In the counter-affidavit filed in W.V.M.P.No.3017 of 2007, which was sworn to by the Chief Administrative Officer of the first respondent organization, several of the averments had been specifically denied. It is averred that NFC, a constituent Unit of the Department of Atomic Energy (DAE) is assigned with the responsibility of producing Nuclear Fuel and other Zircaloy Core Components for the Nuclear Power Reactors in the country. This is a Central Government Establishment under the Department of Atomic Energy established in mid 1970s and it follows the FR & SRs and other CCS Rules and Regulations formulated by the Government of India as generally applicable to all Central Government Departments in respect of the conditions of service of its personnel. 1 4 . To meet the Nation’s growing power requirements, the Department of Atomic Energy, Government of India had launched a massive nuclear power generation programme. Because of gigantic task, the Department is vested with some special provisions such as exemption from UPSC for recruitment/promotions, exemption from DGS&D for procurement of material and exemption from approaching CPWD for construction activities apart from a unique medical scheme of its own. The DAE is also exempted from following the Rules and also inspection of Factories Inspector of A.P. in view of Atomic Energy (Factories) Rules, 1996 formulated in exercise of powers conferred by Sections 41, 49, 50, 76, 83 and 112 and all other enabling sections of the Act read with Sections 23 and 30 of the Atomic Energy Act, 1962(33 of 1962) and notified under GSR-253. 15. In order to discharge its statutory liability, NFC has established a canteen to cater to its employees numbering around three thousand six hundred employees. As NFC is spread over to a large area, it has four canteens in different locations and out of them one canteen works in round-the-clock and the other three works in general shift. From the inception of NFC, in order to look after the day to day affairs of canteen, a Canteen Managing Committee is constituted by drawing persons from both Management and workmen (nominated by the recognized Association). The committee is presided over by a Chairman, nominated by the Chief Executive of the first respondent organization. 16. It is also averred that the NFC Employees Association, which is recognized by the DAE under “Recognition of Service Association Rules, 1993” has been functioning in the first respondent organization, having got recognition w.e.f. 11.01.2007 after emerging as a majority union in the verification process conducted during September, 2006. The recognized association is allowed to nominate some of its members to serve on various committees like, Safety Committee, Transport Committee and Canteen Committee etc., under the JCM Scheme of participative Management. 17. It is further averred that the petitioners were appointed on being nominated by recognized association i.e., NFC Employees Association vide their letter No.Nil dated 06.10.2007 (Annexure R-1) consequent on their internal election of Office Bearers as members of Canteen Managing Committee in the respondent organization. The averment made by the petitioners that the Canteen Managing Committee is constituted by virtue of the Rules is denied since the same is not applicable to the respondent organization in view of Atomic Energy (Factories) Rules, 1996 framed under Sections 23 & 30 of Atomic Energy Act, 1962 and notified vide GSR-253. The recommendations of Staff Inspection Unit (SIU) of the DoPT on the review of norms for canteen employees is nothing to do with the constitution of Canteen Managing Committee in the respondent organization. The Staff Inspection Unit conducts work-study in respect of canteen employees of non-statutory departmental canteens to assess the workload and to review norms for recruitment/promotion of canteen employees. Action is on hand to implement the SIU recommendations in respect of NFC Canteen employees, which is under active consideration of DoPT. 18. It is also averred that for maintaining harmonious industrial relations with the recognized associations, associations are allowed to nominate its members on various committees such as, Safety Committee, Transport Committee, Canteen Managing Committee and Plant Councils etc., under the Joint Consultative Machinery Scheme of participative management. Because of change of leadership at the helm of affairs of NFC Employees Association consequent on the elections to its Office Bearers held in August, 2007, the NFC Employees Association has nominated a fresh list of Canteen Management Committee members. While the members representing management have not been changed, the canteen members representing workmen were only changed in the reconstituted committee. 19. It is further averred that nothing prevents in reconstituting the Canteen Committee for its efficacy whenever there is a change in the governing body of the main recognized union. The guidelines given under para 6.10 of the Administrative Instructions on Departmental Canteens (Annexure R-4) are that the “tenure of the managing committee shall be normally for 3 years duration unless dissolved or changed earlier by the head of establishment”. There is a provision to represent Group C&D employees in the Canteen Management Committee and the NFCEA, which is representing Group C&D employees, had recommended in the new Canteen Committee from Staff side. Therefore, it is possible to dissolve or change the managing committee earlier than three years depending upon the circumstances if the committee is functioning to maintain its representative character. The tenure of three years is only the upper limit and there is no lower limit fixed. The request of the petitioners for continued tenure in the Committee even after the loss of confidence of the governing body of NFCEA, the recognized association, is to get unintended benefits as representatives of NFCEA. In no way, the decision of first respondent organization to replace the petitioners is violative of any statutory rules in this regard. 20. In the counter-affidavit filed in W.V.M.P.No.121 of 2008, which was sworn to by the General Secretary of second respondent, it is stated that the dispute in the above writ petition is regarding the nominated posts held by the petitioners in Canteen Managing Committee of the first respondent organization, based on the list submitted by the second respondent - NFC Employees Association, on 31.02.2006 i.e., at the time of applying for recognition in the first respondent organization, as contemplated under the Central Civil Services (Recognition of Service Associations) Rules, 1993 (for short ‘the CCA (RSA) Rules, 1993’). It is also submitted that the Office Bearers of the recognized Service Association alone are entitled to be appointed to the posts in various Committees in the first respondent as representatives of the workers. Once the post of Office Bearer is lost, the representative capacity on behalf of the recognized service association in the Committee would automatically cease to exist. Since the petitioners were not elected as Office Bearers of the second respondent association in the panel elections held on 18.08.2007 through secret ballot system, they were replaced by the elected Office Bearers of the second respondent association vide impugned proceedings dated 06.10.2007 issued by the first respondent, based on the list of elected Office Bearers furnished by the second respondent. Thus, the dispute in the writ petition is between the petitioners and the second respondent association. The remedy for the petitioners, if at all they are aggrieved with the action of the second respondent association, in conducting the elections for Office Bearers through secret ballot system on 18.08.2007 does not lie in the writ petition. The writ petition is fundamentally misconceived and therefore liable to be dismissed on this ground alone. 21. It is also stated that the activities of the Service Associations in all the Departments of the Government of India are governed by the CCA (RSA) Rules, 1993. Though the second respondent association had the support of majority of the employees of the first respondent during the last verification held in the year 2001, yet on a technical ground that it did not apply to the first respondent for its recognition in terms of the provisions of CCA (RSA) Rules, 1993, within the stipulated time, because of pendency of writ petitions at that point of time, recognition was not granted by the first respondent to the second respondent and therefore the other service association viz., NFC Mazdoor Sangh was accorded recognition by the competent authority since it had submitted application within time. The second respondent (NFCEA) along with its sister registered Service Associations in the first respondent viz., NFC Telugunadu Karmika Parishad (NFCTNKP), NFC Workers Union (NFCWU), Anu Indhana Karmika Sangh (AIKS) have come to an understanding in its joint meeting held on 16.07.2005 that all the above mentioned registered associations would unanimously work under one platform with the second respondent NFCEA, for the welfare of the employees of the first respondent organization, and that if NFCEA secures recognition in the ensuing verification, panel elections would be conducted to elect Office Bearers to the second respondent, through secret ballot system. The petitioners have also participated in the said meeting. 2 2 . It is further averred that the first respondent, by Circular No.NFC/06/10(a)/IR/2006/1012, dated 29.04.2006, called upon the Service Associations in the first respondent to submit their applications, on or before 31.05.2006, along with the following documents for consideration for recognition by the DAE in terms of CCA (RSA) Rules, 1993, after the expiry of the validity of recognition granted by the first respondent to the Nuclear Fuel Complex Mazdoor Sangh (NFCMS) on 30.11.2006. a) Memorandum of Association b) Constitution/Bye Laws of the Association c) Names of the Office Bearers of the Association d) Estimated membership of the Association 23. In pursuance of the said Circular, dated 29.04.2006, the second respondent association submitted a letter dated 30.05.2006 to the first respondent along with the list of existing Office Bearers of the second respondent, including the names of the petitioners herein. By letter dated 31.05.2006, the second respondent association has also submitted all the documents i.e., bye-laws of the second respondent association, list of its Office Bearers, copy of Certification of Registration, Estimated Membership of the NFC Employees Association i.e., a list of 2484 employees, and requested the first respondent to accord recognition under CCA (RSA) Rules, 1993, since the second respondent has majority of the employees supporting to it. 24. It is relevant to submit here itself that Clause-10 of the Bye-Laws of the second respondent association stipulates the mode of election of the Office Bearers of the second respondent association either through General body or through secret ballot system. Since it was resolved in the joint meeting with the sister associations of the second respondent held on 16.07.2005, which was reduced in the Memorandum of Understanding that if the second respondent secures recognition on verification through check off system, panel election would be conducted through secret ballot system to elect office bearers of the second respondent. All the Office Bearers, including the petitioners herein have given undertakings on 29.05.2006, in the form of sworn affidavits, stating that soon after the recognition of the second respondent association in the ensuing verification, panel elections would be conducted through secret ballot system for electing office bearers of the second respondent association, and that all the existing office bearers would work whole heartedly for the success of the second respondent association in the forthcoming verification for recognition and for the welfare of the employees. 2 5 . It is further stated that the first respondent by Circular No.NFC/06-10(a)/IR/2006/1052, dated 08.07.2006, has intimated to all the service associations, including the second respondent association that it was proposed to verify the membership of the associations, by check off system in terms of CCS (RSA) Rules 1993 for the purpose of recognition/re-recognition and therefore directed all the employees to give their letters, in the prescribed proforma, in favour of only one service association, through the General Secretary to the concerned Association, authorizing the Accounts Officer of the first respondent NFC for deduction of annual subscription for the year 2006-07 from their salary commencing from the month of July 2006. The letters of authorization given by NFC employees in favour of the second respondent association were submitted to the first respondent within time. The first respondent has conducted verification in the month of July, 2006 by check off system, and declared that the second respondent association has emerged as the majority union having secured authorization letters from more than 35% of the eligible employees in the first respondent. Since it would take considerable time to receive orders from the Department of Atomic Energy, regarding recognition of the second respondent association, the General Secretary of the second respondent association by letter dated 18.12.2006 has submitted a list of its Office Bears, who were nominated by the second respondent association for making them as Workers Representatives in various Committees w.e.f. 01.12.2006 viz., Safety Committee, Transport Committee, Canteen Committee and Departmental Council Members etc. 26. It is also averred that the Department of Atomic Energy by its Office Memorandum No.3/49/2006-IR & W/239 dated 11.01.2007 granted recognition to the second respondent association, for a period of five years from the date of issuance of the said Office Memorandum. In pursuance to the said Office Memorandum dated 11.01.2007 of the DAE, the first respondent by letter No.NFC/06-10/IR/2007/4, dated 11.01.2007, has intimated to all concerned, including to the second respondent association that the DAE has recognized the second respondent association in terms of CCS (RSA) Rules, 1993, for a period of five years w.e.f. 11.01.2007. The Industrial Relation Officer of the first respondent by letter NO.NFC/06-03/IR-07/1185, dated 27.01.2007 has intimated to the Chairman of the Managing Committee that the following persons were nominated by the second respondent association to include in the Canteen Managing Committee of the first respondent as Workers Representatives. a) P.Shankar Reddy b) B.Laxman Naik c) N. Eswaraiah d) K.Ramulu e) G.Srinivasa Rao 27. It is further averred that the second respondent association by letter dated 07.02.2007 has intimated to the said Industrial Relations Officer that the list of Office Bearers of the second respondent was already submitted on 31.05.2006 based on the membership for the year 2005-06 and the second respondent NFCEA would continue for some more time i.e., till the new body is elected through secret ballot system. Therefore, the Industrial Relations Officer of the first respondent by letter No.NFC/06-03/IR-2007/32 dated 08.02.2007 has communicated the same list of Office Bearers furnished by the second respondent association vide letter dated 31.05.2006 to all concerned. Since the second respondent association has received recognition from the competent authority in terms of CCS (RSA) Rules 1993 vide Office Memorandum, dated 11.01.2007, the second respondent by its letter dated 02.04.2007 intimated the first respondent that it proposes to conduct elections through secret ballot method to elect its Office Bearers and requested the first respondent to accord permission for the same and also to spare two of its Officers to act as Convener and Co-convener to conduct the elections of the second respondent association. 28. It is also stated that all the associations under the second respondent viz., NFC-INTUC, AIKS, CITU, TNKP and NFCWU have met on 03.05.2007 and came to the conclusion that registration certificates of the constituent associations mentioned above, registered under the Trade Unions should be cancelled, to constitute a Five Members Committee and to appoint Convener/Co-Convener for conducting the panel elections to the second respondent through secret ballot system and to obtain resignation letters form the existing Office Bearers, as per the undertakings given by them on 29.05.2006 i.e., at the time of including their names in the list of Office Bearers of the second respondent association. The petitioners have also participated in the said meeting held on 03.05.2007 and the third petitioner suggested the second respondent to cancel the registrations of all the three registered unions before conducting the panel election. The Five Members Committee met on 8.5.2007, 15.7.2007 and 17.5.2007 and completed the pre-election process i.e., cancellation of Registration Certificates orders from the Deputy Registrar of Trade Unions and the Deputy Commissioner of Labour, Ranga Reddy Zone, Hyderabad issued vide Proceedings dt.13.7.2007, voluntary resignations from all the existing Office Bearers of the second respondent association as per the commitment given by them on 29.5.2006, to enable the Convener (Elections) to conduct the panel elections to the second respondent association through secret ballot system. All the existing Office Bearers, including the petitioners herein have voluntarily submitted their resignation letters to the posts held by them in the second respondent association. The first petitioner by his letter dated 20.7.2007 has resigned for the post of Vice President, the second petitioner by his letter dated 19.7.2007 has resigned for the post of Organising Secretary, and the third petitioner by his letter dt.17.5.2007 has resigned for the post of Organising Secretary, which were held in the second respondent association. Since, the petitioners and other Office Bearers have resigned for the Office Bearers posts, they would automatically cease to be the representatives of the workers in the Committees of the first respondent on behalf of the second respondent association. The petitioners have no vested right to continue in the Committees even after voluntarily resigning from the Office Bearer posts held by them in the second respondent association. 29. Be that as it is, the Convener (Elections) has issued Election Notification dated 31.7.2007 for conducting election to the post of Office Bearers in the second respondent association in accordance with its Bye-Laws and as well as the decision taken in the joint meeting of the constituent associations and issued election programme, fixing the date of election on 18.8.2007. Almost all the previous Office Bearers of the second respondent association, including the petitioners herein have submitted their nomination in the prescribed forms to be Convener (Elections). The first petitioner has filed his nomination for the post of Vice-President, the second petitioner has filed his nomination for the post of Organising Secretary, and the third petitioner has filed his nomination for the post of Organising Secretary in the second respondent association. The Convener (Elections) has published the list of valid nominations as well as the list of