THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.15348 of 2007 Date: 27th September, 2007 Between :- The Indian Airports Kamgar Union, Regd.No.3950, Begumpet, Hyderabad Airport, Rep. By its General Secretary, G.A.Rudrappa .. Petitioner And The Chief Labour Commissioner (C), Government of India, Ministry of Labour Employment, Shram Shakthi Bhavan, Rafi Marg, New Delhi and 2 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.15348 of 2007 ORDER: 1. This Court issued rule nisi on 19-7-2007. 2. Respondents 2 and 3 filed counter affidavit though it is shown as counter affidavit filed by respondents 3 and 4. A reply affidavit also had been filed. Though the matter is appearing under the caption “INTERLOCUTORY” at the request of the Counsel on record, the Writ Petition is taken up for Final Hearing. 3. Sri P.Sreedhar Rao, the learned Counsel representing the writ petitioner had taken this Court through the averments made in the affidavit filed in support of the Writ Petition, the relevant portions of the Code of Discipline and the Circular and would maintain that in the facts and circumstances, there must be some independent supervision. The learned Counsel also pointed out that though the Circular and the Code of Discipline may not be statutory as such, the respondents are bound to honour the same and follow the same as guidelines. The Counsel also had pointed out to the complaint made on 23-9-1997, the letter dated 17-8- 2007and also the Minutes of the meeting dated 29-5- 1992, the letter dated 16-9-1992, the letter dated 10-10- 2000 and also the note dated 24-7-2007 and would comment that in the light of the same, it is clear that the petitioner has been agitating for the rights which are being claimed in the present Writ Petition for sufficiently a long time and hence the stand taken in the counter affidavit cannot be taken either as a correct stand or as a justifiable stand and hence suitable directions are to be issued in this regard. The Counsel also placed reliance on certain decisions. 4. On the contrary, Sri E.Madan Mohan Reddy, the learned Counsel representing respondents 2 and 3 would maintain that the Writ Petition itself is not maintainable since a Writ of this nature cannot be issued either for the enforcement of the Circular or the alleged Code of Discipline. Even otherwise, the learned Counsel would submit that the respondents 2 and 3 are acting in accordance with Law and the learned Counsel had taken this Court through the stand taken by these respondents in the counter affidavit and ultimately would conclude that in any view of the matter, the Writ Petition being a misconceived remedy, the same is liable to be dismissed. 5. Sri Gokula Rama Rao, the learned Counsel representing the 1st respondent also made certain submissions in the light of the counter affidavit filed by the other respondents. 6. Heard the Counsel on record. 7. The Indian Airports Kamgar Union, with Registered No.3950, Begumpet, Hyderabad Airport, represented by its General Secretary, filed the present Writ Petition to call for the records from the respondents by issuing a writ, order or direction more particularly one in the nature of writ of mandamus by directing the respondents to follow the Circular Instructions No.25/80 dated 18-12-1980 issued by the 1st respondent to recognize the majority unions for collective bargaining in ensuing elections for the period from 2007-2012 and to pass such other suitable orders. 8. The affidavit filed in support of the Writ Petition was sworn to by the General Secretary of the petitioner- Union. It is stated that the process for conducting secret ballot to determine the majority/recognized status of the Unions is overdue as the 3rd respondent Union was declared to be the majority Union for the period 30-10- 2002 to 29-10-2007 in the elections held in the month of September 2002 by notification dated 11-9-2002. The 3rd respondent-Union’s period of recognition as the majority Union admittedly comes to an end by 29-10-2007. It is further stated that it is the established procedure adopted by the management that i.e., respondents 1 and 2 will commence the process of election in the month of June itself by calling all the Unions to hold Minutes of meeting to start process of election and on completion of such procedure, election notification will be issued. The petitioner-Union had made several representations dated 3-5-2007, 15-6-2007, 3-7-2007 and finally 14-7-2007 to commence the process for election which was done in the past years. But, the management without considering these representations and at the fag end of period of recognition of 3rd respondent-Union is making hectic efforts to hold joint consultative meeting from 20th to 21st July Goa on certain demands without taking into confidence the other Unions existing under the Airport Authority of India. The action on the part of the Airport Authority of India to hold Joint Consultative Meeting with the 3rd respondent alone is only to favour them. The purpose of referendum with all the Unions to follow such procedure and to conduct secret ballot to determine the majority status of the Unions five months before is to verify the memberships of the Union members to complete the entire process of election since about 127 Airports and Airports establishment/employees are working all over India. It is further stated that calling for such Joint Consultative Meeting with only 3rd respondent Union is to favour the 3rd respondent in the ensuing elections. In all the representations submitted, the petitioner requested to adopt the same procedure of the previous years while taking any policy decisions with regard to the workmen benefits since the elections are to be scheduled in September 2007. In the representation of the petitioner Union also, the irregularities committed by the 3rd respondent had been specifically pointed out and in spite of the representations of the petitioner, the 2nd respondent is going ahead with the Joint Consultative Meeting with to the 3rd respondent on 20th and 21st of July 2007 at Goa. It is also further stated that as per the Instructions No.25/80 dated 18-12-1980, the 1st respondent is the appropriate machinery to conduct the elections by secret ballot to identify the majority Union, but only in the year 2002 such procedural Instructions were deviated and the 3rd respondent was declared as the majority Union by the respondents and therefore it is just and necessary to direct the respondents to hold elections as per the procedure prescribed under the Instructions. Strong reliance was placed on No.CIC’s Instruction No.25/80, New Delhi, dated 18-12-1980, issued by the Ministry of Labour, Office of the Chief Labour Commissioner, Shram Shakti Bhavan, Rafi Marg and also the relevant portion of the Code of Discipline, the procedure for verification of the membership of the Union for the purpose of recognition under the Code of Discipline. 9. The counter affidavit filed is sworn to by the Senior Manager (Law) in the Airport Authority of India who had denied several allegations. It is stated in para-3 of the counter affidavit that the averment of the process of conducting secret ballot to determine the majority/recognized status of the Unions is overdue as the 3rd respondent Union was declared to be the majority Union for the period 30-10-2002 to 29-10-2007 in the elections held in the month of September 2002 by notification dated 11-9-2002, is misconceived. It is further stated that it is true that the period of recognition of the 3rd respondent Union will come to an end by 29-10-2007 but the averment that the elections are conducted in the month of September 2002 is misconceived. It is stated that the last Union elections were held during Octiber 2002 and the management has every right to hold elections to determine the majority status of a Union at any time even before the expiry of the term of recognition. It is also further stated that the averment that the established procedure adopted by the management that these respondents will commence the process of election in the month of June itself by calling all the Unions to hold Minutes of meeting to start process of election and on completion of such procedure election notification will be issued is incorrect. It is further stated that the 1st respondent has no role to play with regard to the Union elections to be held in the Airport Authority of India. It is not correct to say that the management is not following the prescribed procedure for holding referendum. The Airports Authority of India (AAI) was formed by an Act of Parliament of 1994 and came into effect on 1-4-1995 with the merger of the erstwhile International Airports Authority of India (IAAI) and National Airports Authority (NAA). The management of unified AAI decides to elect a majority Union by holding referendum to safeguard the interests of the general workers all over India taking into account that multiplicity of the Union is not affordable. As such a Committee was constituted during 1997 and referendum to elect majority Union was held in a very free, fair and procedural manner. In this referendum, all the Registered Trade Unions operating in both the organizations i.e., IAAI and NAA also participated. The Union which got majority votes of the employees was declared single bargaining agent. The same procedure was also followed during the referendum held in October 2002. It is stated that it is a fact that on record proper procedure had been followed. As per the said procedure, policy and decisions adopted by the Airports Authority of India, this time also the election process had been initiated by issuing the office Order No.A.60011/21/2007-IR, dated 17-8-2007 to hold the elections to the Unions in Airports Authority of India by secret ballot to determine the majority/recognized status of the Unions and accordingly a Committee had been constituted under the said office order and the Committee will hold the meetings with the Unions operating in AAI. It is further stated that the process to hold referendum had already been initiated and the Committee constituted for the purpose will also finalize the modalities to hold referendum, the terms and conditions of the recognition as well as facilities to be extended to the recognized Union in consultation with the Unions found eligible to participate in the referendum. The said Committee will also decide the procedure to be adopted to hold Union elections in Airports Authority of India to elect the majority Union and the single bargaining agent. The said Committee will hold meetings with the Registered Trade Unions having a valid registration and whose membership is open to all the cadres of employees in AAI as per the procedures adopted in this regard. It is also further stated that it is a matter of fact that the existing term of the recognized Union is expiring on 29-10-2007 and the management of AAI always reserves the right to hold meeting of the Joint Consultative Machinery. It is not correct that the petitioner Union had written several representations to the management to commence the process of election. The letter dated 3-5-2007 of the petitioner Union was a request for certain facilities and to consult the petitioner Union for formulation of Pension Scheme for AAI employees. The letter dated 15-6-2007 of the petitioner Union was regarding collection of the Union subscription and donations from its own members for which AAI management has no role. The petitioner Union’s letter dated 3-7-2007 is also a request to consult the petitioner Union before announcing the benefits or decisions and to pass orders to initiate the process of secret ballot since the Union elections are due. It is a matter of record that in all the letters mentioned in the petition, the petitioner Union had simply requested to consult them in all the policy related matters whereas the fact remains that the petitioner Union does not enjoy the majority status and is not a recognized Union. It is also further stated that the other allegations that the management without considering the representations and at the fag end of the period of recognition of the 3rd respondent Union is making hectic efforts to hold Joint Consultative Meeting from 20th to 21st July at Goa on certain demands without taking into confidence the other Unions existing under the Airports Authority of India, is misconceived. It is further stated that the meetings of the Joint Consultative Machinery are held as per the established schedule on yearly basis and are held with the recognized Union alone and as such the question of taking into confidence the petitioner’s Union does not arise. The allegation that the action on the part of the Airports Authority of India to hold Joint Consultative Committee meeting with the 3rd respondent alone is only to favour them, is incorrect. The Airports Authority of India had already initiated the process of recognition of the majority status by way of secret ballot and it will be completed as per the existing procedure and rules. It is also further stated at para-7 of the counter affidavit that the Joint Consultative Machinery meetings are held with the majority/recognized Union and non- recognised Unions are never called for any such meeting as the issues relating to the employees are discussed with the recognized Union for maintaining cordial relations. It is further stated that the JCM was held on 20th and 21st July at Goa and appropriate decisions had been taken in consultation with the recognized Unions. It is also further stated that it is not a fact that the management had not adopted appropriate machinery to conduct the election by way of secret ballot prior to 2002. It is a fact on record that the secret ballot election held during 1997 to elect the majority Union for a period of five years, proper procedure was adopted by the management. The procedure adopted during 1997 was further followed during the secret ballot election held on 2002. It is also a fact on record that the petitioner Union had also participated in these two Union elections and lost. Accordingly it had been decided to follow the said procedure during the proposed referendum to be held in due course. It is also further stated that as per the Instructions No.25/80 dated 18-12-1980, the 1st respondent is the appropriate machinery to conduct the elections to identify the majority Union but only in the year 2002 such procedure Instructions were deviated and the 3rd respondent was declared as the majority Union by the respondent and therefore it is just and necessary to direct the respondents to hold elections as per the procedure prescribed under the Instructions, is incorrect. The Instructions No.25/80 dated 18-12-1980 does not apply to the Airports Authority of India. As per the Airports Authority of India Act 1994, Airports authority came into existence from 1-4-1995 and thereafter a policy decision had been taken to conduct the elections as per the procedure evolved by the AAI and accordingly the election process was conducted in the years 1997 and 2002. It is also further stated that the Circular Instructions No.25/80 dated 18-12-1980 is general instructions issued by the Chief Labour Commissioner (Central) to be followed by the Departments in the event of management of Unions approach the Labour Ministry to conduct the elections but not otherwise. As far as the Airports Authority of India is concerned, in tune with the Instructions issued by CLC (Central) and as per the practice, the policy to hold elections had been framed and accordingly elections were held from time to time as per the modalities worked on their consent only. In the referendum which is due during October 2007, modalities, procedures and the date of election will be decided in consultation and at the instance of the participating Unions. In fact, the modalities adopted by the Airports Authority of India are not in conflict with any of the guidelines which are being followed by the Labour Ministry. It is also further stated that the Instructions and the procedures claimed by the petitioner have no statutory basis and the petitioner has no legal right to request to adopt a particular procedure to hold the elections for deciding the majority status of the Unions. As such, the Instructions No.25/80 dated 18-12-1980 does not apply in this case and the said Instructions or guidelines have no statutory basis to seek a Writ of Mandamus under Article 226 of the Constitution of India. The election process had already been initiated by the respondents by order dated 17-8-2007 and the Writ Petition is misconceived. The Writ Petition is devoid of merits and is liable to be dismissed with costs including the miscellaneous applications. 10. In the reply affidavit filed, several averments were made by the writ petitioner again while answering the averments made in para-3 of the counter affidavit. It is stated in para-3 of the reply affidavit that the process for conducting secret ballot to determine the majority recognized status of the Union is overdue as the 3rd respondent Union was declared to be the majority Union for the period 30-10-2002 to 29-10-2007. The averment that elections held in the month of September 2002 by notification dated 11-9-2002 is specifically denied as misconceived and this can be evidenced in view of letter No.PRS/IR/1104/1/02/2143, dated 11-9-2002 and also the document dated 30-10-2002. It is further stated that it appears the averments were made by the deponent in the counter affidavit without proper verification of facts and further the averment that the management has every right to hold the elections to determine the majority status of the Union at any time even before the expiry of the term of the recognition does not stand to the scrutiny of Law. For the previous verification poll to recognize the majority Union, the process started in June 2002 itself and this can be evidenced through the documents filed by the petitioner along with the Writ Petition. It is emphatically denied that the averments made in the counter affidavit that the 1st respondent has no role to play with regard to the verification poll of the majority status of the Union to be held in the Airport Authority of India. In fact, the erstwhile National Airports Authority of India had agreed to follow and observe the Code of Discipline as evolved in 16th Session of Indian Labour Conference held on May 1958 in letter and spirit. Therefore even merging the erstwhile Indian Airport Authority and the National Airport Authority of India and constituted Airport Authority of India by an Act of Parliament of 1994 which came into force w.e.f. 1-4- 1995 has no bearing in so far as to hold the verification poll to recognize the majority status of a Union under the Code of Discipline. In so far as the referendum held in the year 1997 and 2002 to identify the majority Union by the management, the same will not give any right or authority to the respondents to deviate from the established procedure wherein it was agreed that both the managements and the Unions in public and private sectors to follow the Code of Discipline under which implementation machinery consists of two separate organizations i.e., implementation units and tripartite implementation committees and unbiased agencies had been provided. In fact the petitioner Union had also made representations to the respondents 1 and 2 previously in the year 1997 and 2002 with regard to the violations committed by the 2nd respondent more particularly deviating the procedure of Code of Discipline and also the Circular Instructions No.25/80, dated 18-12-1980. It is also not out of place to submit that the Circular Instructions were issued as agreed upon under the Code of Discipline as ratified by all the Central employees and workers organizations at the 16th Session of the Indian Labour Conference held in May 1958 and which came into force w.e.f. 1-6-1958. Therefore the procedure adopted for recognizing majority Union during the year 1997 and 2002 has no relevance and no legs to stand. It is also further stated that the present office Order No.60011/21/2007-IR dated 17-8-2007 to hold the elections by the 2nd respondent is contrary to the Code of Discipline, Circular Instructions issued by the 1st respondent and also the principles of Law laid down by the Apex Court. It is also further stated that in view of the Law laid down by the High Courts the procedure adopted by the 2nd respondent is unjustified, illegal and untenable in Law. With regard to the other averments made in the counter affidavit, the same are hereby denied as incorrect and the representations and additional material papers filed along with the reply itself disclose the favouratism of the 2nd respondent by deviating from the procedure to conduct the verification poll under the Code of Discipline to extend undue advantage to the 3rd respondent Union. In reply to the averments made in paras 7 and 8 of the counter affidavit, it is stated that the petitioner Union had brought it to notice of the 1st respondent with regard to the violations committed while recognizing majority Union during the year 1997 and 2002 and the 2nd respondent being the model employer cannot deviate from the procedure established by Law and the illegalities committed cannot be perpetuated. It is further stated with regard to the averments made in para-9 of the counter affidavit that it is evidenced that the 2nd respondent had violated the Code of Discipline and also the Circular Instructions No.25/80 dated 18-12-1980 and the contents that the Circular Instructions have no application to the 2nd respondent is devoid of any merit. As per the averment made in the counter affidavit, the Airport Authority of India was formed by an Act of Parliament of 1994 in merger of erstwhile National Airport Authority of India and the International Airport Authority of India, in case the appropriate Government is Central Government and therefore the 2nd respondent had taken a policy decision to conduct elections as per the procedure evolved by the Airport Authority of India is devoid of any merit. The Airport Authority of India has no authority to take any such alleged policy decisions by itself inasmuch as it is not an administrative function or right created in favour of Airport Authority of India under any statutory provisions. Even assuming without admitting, if any such policy decision is taken as alleged unilaterally by the 2nd respondent without taking into consideration the Code of Discipline as ratified by all the Central employees and workers organization at the 16th Session of the Indian Labour Conference held in 1958, the same is liable to be ignored. Therefore at no stretch of imagination it can be drawn that the 2nd respondent can conduct the verification poll to determine the majority Union, but is only as per the Code of Discipline and Circular Instructions No.25/80 issued in this regard and also as per the Law laid down by the various Courts and the Apex Court. 11. It is true that in No.CIC’s Instruction No.25/80 dated 18-12-1980, issued by the Ministry of Labour, Office of the Chief Labour Commissioner (C), Shram Shakti Bhavan, Rafi Marg, the subject “Determination of relative strength of union operating in an establishment/industry in a local area under the Central Sphere by Secret Ballot” had been dealt with and it appears the same had been issued as certain trade union organizations had been representing to the Government for determination of relative strength of unions operating in an establishment by Secret Ballot System and hence a copy of the procedure as evolved and approved by the Ministry of Labour had been enclosed for information. Further, the procedure for verification of membership of Unions for the purpose of recognition under the Code of Discipline and the rights of the recognized Unions under the Code of Discipline also had been referred to in elaboration by the Counsel representing the writ petitioner. Further, as already referred to supra, along with the reply affidavit, the undernoted documents also had been relied upon : (1) Letter No.A60011/21/2007-IR, dated 17-9-2007 (2) Complaint No.AAKU/Complaint/97, dated 23-9-