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ideal Jawa Employees Association Vs. Umesh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Constitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 12190 of 1984
Judge
Reported inILR1985KAR1080
ActsModel Election Rules
Appellantideal Jawa Employees Association
RespondentUmesh and ors.
Appellant AdvocateR.N. Narasimha Murthy, Adv. for ;D. Leelakrishna, Adv.
Respondent AdvocateN. Devadas, HCGP for R-1 and 2, ;M.C. Narasimhan, Adv. for R-3 to 8 and ;S.B. Swethadri, Adv. for R-9 to 11
Excerpt:
.....respondents raised a preliminary objection as to maintainability of writ petition on the ground election rules have no statutory force whereby the returning officer cannot be regarded as exercising any statutory powers and no writ can issue quashing the calendar of events issued by him.;(i) a trade union could either frame its own rules or adopt the model election rules. in both the cases, the rules would be the rules of the association and not the rules framed by the government under the act. the rules have no statutory force.;(ii) an officer of the state government has come into the picture not by statutory compulsion but consequent on the request made by the association which the commissioner of labour has accepted. it is not and was not disputed that an..........is produced as annexure-a to the petition. in accordance with the rules framed by the petitioner-union, election of office-bearers consisting of a president, vice-president, secretary. two additional secretaries, a treasurer and 16 members was held on 18-3-1983. shri a.k. subbaiah was elected as president of the union along with other officer-bearers. according to rule xi(3) of the rules vide annexure-a, the term of office bearers is two years' rule 7 of the rules prescribes the procedure for removal of office bearers elected at an election. according to the said rule read with rule xv111 (d), if a requisition signed by not less than 14th of the members of the association, is given requesting the president to convene a special general meeting for the purpose of moving 'no confidence'.....
Judgment:
ORDER

Rama Jois, J.

1. The Ideal Jawa Employees' Association, Mysore, represented by its President, has presented this Petition questioning the Calendar of Events dated 10-7-i984Annexure-D) issued by the Returning Officer and Assistant Commissioner, Mysore SubDivision, for the purpose of holding the election of office-bearers and members of the Executive Committee of the Ideal Java Employees' Association Mysore.

2. The facts of the case, in brief, are as follows : The Ideal Jawa Employees' Association is a tradeunion registered under the trade union Act. For the purpose of holding the election of office-bearers of the tradeunion it has adopted the Model Election Rules framed by the StateGovernment under the provisions of the trade unions Act. In addition, the trade union has also framed its own additional Rules. Copy of it is produced as Annexure-A to the Petition. In accordance with the Rules framed by the Petitioner-union, election of office-bearers consisting of a President, Vice-President, Secretary. Two Additional Secretaries, a Treasurer and 16 members was held on 18-3-1983. Shri A.K. Subbaiah was elected as President of the Union along with other officer-bearers. According to Rule XI(3) of the Rules Vide Annexure-A, the term of office bearers is two years' Rule 7 of the Rules prescribes the procedure for removal of office bearers elected at an election. According to the said rule read with Rule XV111 (d), if a requisition signed by not less than 14th of the members of the Association, is given requesting the President to convene a special general meeting for the purpose of moving 'No Confidence' against him or any other office-bearers, he is required to convene a special meeting as requested. If the President fails to convene the meeting as requested, RuleXVIII (d) of the Rules provides that any other office-bearer could convene the meeting. The resolution could be passed if at least fifty per cent of the members are present and two-thirds of them vote in favour of the resolution. A requisition is said to have been served on. the President on 16-5-I984 requesting him to convene a special general meeting for the purpose of expressing 'NoConfidence' in him within two weeks. But shortly thereafter on 20-5-1984, a general body meeting is said to have been held, a resolution is said to have been passed removing Sri A.K. Subbaiah from the office of the President. Thereafter, the impugned calendar of events has been issued by the Assistant Commissioner for the purpose of holding fresh election of office-bearers of the Union on 10-7-1984, as he was nominated as the Returning Officer by the Commissioner of Labour, who is said to have been requested by theAssociation for holding a fresh election. It is the validity of the said notice, which has been challenged by the Petitioner in this Writ Petition.

3.The grounds on which the notice of election has been challenged by the Petitioner are as follows :

(i) The office-bearers elected on 18-3-I983 had a right to continue till 18-3-1985, as the term of their office was two years. The requisition which was served on the President on 16-5-19(sic)4 was signed by only 26 members of the Association though the membership of the Association was 2200 and therefore the requisition ought to have been signed at least by 550 members and as the same had not been done, the requisition itself was invalid.

(ii) Alternatively, even according to the requisition if only the Presented failed to convene a meeting within thestipulated time, thereafter any other office-bearer could have proceeded to convene a special general meeting, and as the meeting itself is said to have been held on 20-5-1984, the meeting was invalid and therefore the office-bearers elected on 18-3-1983 did not, by virtue of that resolution, lose the right to continue in office and therefore the holding of an election even when their tenure of office was still continuing was invalid.

4. As against the above pleas of the petitioner, the stand taken on behalf of the contesting Respondents is as follows : The requisition had been sought to be delivered on a date earlier to 16-5-1984, but was not received and therefore it was given on 16-5-1984. It had been signed by requisite number. As there were serious disputes among the members of the Executive Committee and other members, the Deputy Commissioner had called a meeting of the representatives of both the groups on 11-6-1984 and on the said date both the groups agreed for holding of a fresh election of office-bearers and it was pursuant to the said agreement, a request was made by the Association to the Commissioner of Labour for nominating a Returning Officer and it was pursuant to the said request he nominated the Assistant Commissioner, Mysore Sub-Division, as the Returning Officer. Therefore, the calendar of events issued by the Assistant Commissioner on 10-7-1984 was consequent on the agreement between both the parties and therefore the petitioner could not challenge the validity of the said notice. The validity of the resolution dated 20-5-1984 has not been challenged in this Petition and therefore the petitioner could not challenge the validity of notice of election.

5. Apart from the above objection on the merits of the case learned Counsel for the Respondents raised a preliminary objection as to the maintainability of the Petition. The plea is as follows : The rules of election, whether those contained in the model election rules and adopted by the Petitioner-association or the rules framed in addition, by the Petitioner-association are those framed by the Association itself and therefore they have no statutory force. The fact that Section 6 of the Trade Unions Act requires a trade-union to frame its own Rules before securing registration does not conferstatutory character on such Rules. As the Rules had no statutory force, the Returning Officer who has issued the Calendar of Events cannot be regarded as exercising any statutory powers and therefore no writ can issue quashing the calendar of events issued by a nominee of the Labour Commissioner, who had nominated the Returning Officer only because theAssociation had requested him to do so and not because there was any statutory duty cast upon him to appoint a Returning Officer.

6. In support of the above submission, Learned Counsel relied on the judgment in the case of Triloki Nath -v.- All India Postal Workers Union, : AIR1957All234 . Relevant part of the judgment reads :

''In my opinion the fact that Section 6 provides that no Union can be registered unless its constitution provides for these matters does not necessarily mean that the rules relating to matters contained inSection 6 acquire a statutory force.

XX XX XX XX''Any breach of such rule cannot be enforced by a Writ of Mandamus under Article 226 of the Constitution. If any of the rights of the Petitioner has been infringed by violation of any of these rules the the remedy the Petitioner will be by way of a suit.'

The Learned Counsel also relied on the judgment of the Calcutta High Court in Mohamed Ibrahim -v.- Assansol Iron and Steel Workers' Union, : AIR1955Cal189 , which is also to the same effect. In both the cases, the respective High Court held that the Election Rules framed by a trade-union have no statutory force and, therefore, even if there was any violation, no Writ Petition is maintainable to enforce such rules and that the remedy could be only by way of suit. Learned Counsel also relied on the judgment of the Supreme Court in the case of Co-operative Central Bank -v.- Industrial Tribunal, A.I.R. 1979 SC p. 245 paragraph-10 in which the Supreme Court held that the bye-laws framed by a Co-operative Society for the purpose of securing registration under the Co-operative Societies Act, have no statutory force. The ratio of that judgment also shows the rules framed by a Trade Union has no statutory force.

7. Learned Counsel for the Petitioner did not dispute that the Rules have no statutory force. He, however,submitted that if an officer of the State Government was discharging certain functions, whether such exercise was pursuant to the power conferred on him under a statutory rule or pursuant to orders or rules which have no statutory force, his action is amenable to the writ jurisdiction, as he happens to be an officer of the State Government. In support of this submission, Learned Counsel relied on the judgment of the Supreme Court in the case of Tikaram -v.- Mundikota Shikshan Prasarak Mandal, : [1985]1SCR339 . Learned Counsel submitted that undisputedly the Commissioner of Labour whonominated the Assistant Commissioner, Mysore Sub-Division, as the Returning Officer and the Assistant Commissioner him-self who has been nominated as the Returning Officer, were officers of the State Government and therefore if they had issued calender of events even before the tenure of office of the office bearers elected on 18-3-1983 had come to an end, their action could be set aside in a Petition under Article 226 of the Constitution and they could be prevented by the issue of an appropriate writ from holding election before the term of office came to an end.

8. After considering the arguments addressed by the Learned Counsel on both sides, I am of the view that the judgment of the Supreme Court on which the Learned Counsel for Petitioner relies is clearly distinguishable and does not in any way support the contention urged for the Petitioner regarding the maintainability of the Petition.

9. In fact a question as to the nature of the rules and its enforcement came up for consideration before this Court in the case of The Hindustan Machine Tools Karmika Sangha -v.- The Commissioner of Labour, ILR 1985 KAR 411. In the said case the trade-union had made a request to the Labour Commissioner to nominate a Returning Officer on the ground that the membership of the trade-union was more than 2,000 and there-fore in view of the rules the Labour Commissioner was under a duty to nominate an officer of the State Government as Returning Officer for the purpose of holding election of office-bearers of the said trade union. In the said case, the Commissioner of Labour who was himself the respondent took the stand that the Election Rules had no statutory force and consequently no statutory duty was cast on theCommissioner of Labour to nominate a Returning Officer and therefore he could not be compelled by the issue of a writ of mandamus to nominate a Returning Officer. In view of the stand taken by the Commissioner, the question whether the election Rules had statutory force and whether this Court could compel the Commissioner to nominate a Returning Officer was considered. The relevant portion of thejudgment reads :

''14. It may be as contended for the Petitioner, the expression 'any other person duly authorised by the Managing Committee 'in the election rules of the Petitioner as existing, can include the Labour Commissioner or his nominee. But still the question arises, whether a writ ofmandamus would lie to the Commissioner to nominate a Returning Officer. The Rules framed by a Trade Union for purposes of securing registration under Section 6 of the Act are Rules meant for its internal administration and arc equivalent to the bye-laws of Co-operative Society or Rules framed by a Society for securing registration under the Societies Registration Act. They would have no statutory force and consequently cannot create any statutory obligation in the Commissioner (See: : (1969)IILLJ698SC ). Therefore, even if the Petitioner-Union had incorporated Rules similar to Rule4(2)(a)and(b) of the Model Election Rules into its election Rules or even if the rules without such amendment also provided for requesting the Labour Commissioner to nominate a Returning Officer, the Commissioner could not he compelled by the issue of a writ of mandamus to nominate a Returning Officer as the Trade Union has no authority to create a statutory duty in the Commissioner by framing its own Rules which have no statutory force. Therefore, I consider it impermissible to issue a writ of mandamus to the Labour Commissioner as sought for.'

From the above judgment it is clear that the model rules framed by the State Government do not govern the election of the trade-union by its own force. Its purpose is only to help a trade union to frame rules, which could be on the lines of model election rules. A trade-union therefore could either frame its own rules or adopt the model election rules. In both the cases, the rules would be the rules of theassociation and not the rules framed by the Government under the Act Further it was held that the rules have no statutory force and consequently did not create any statutory duty on the part of the Commissioner and consequently did not create any statutory right on the said Petitioner to seek a writ ofmandamus to compel the Commissioner of Labour to nominate a Returning Officer.

10. The said judgment, in my opinion, fully covers this case as the real point which arises for consideration in this case is the same though it has arisen in a different manner. In the present case, a request had been made to theCommissioner of Labour on behalf of the Association irrespective of the question, whether it had been made by persons authorise to act on behalf of the Association or not, to nominate a Returning Officer. It is on such request, the Commissioner of Labour nominated the Assistant Commissioner, Mysore Sub-Division, as the Returning Officer. As held in W. P. No. 11276 of 1984 (ILR 1985 KAR. 411), the Commissioner of Labour could have also refused to nominate a Returning Officer and in which event he could not be compelled by the issue of a writ of mandamus to nominate a Returning Officer. Therefore, the real position is, an officer of the StateGovernment has come into the picture not by statutory compulsion but consequent on the request made by the Association which the Commissioner of Labour has accepted. It is not and was not disputed that an Association could request any person other than a Government Officer such as an Advocate to function as a Returning Officer. If the rules have statutory force, then whether the Returning Officer is a person other than Government servant or a Government servant, it makes no difference. The action of the Returning Officer could be called in question in a Petition under Article 226. Similarly, if the rules have no statutory force, it makes no difference whether the request was made to a private person or to a Government Officer who had accepted it. In both the cases, he would not be exercising any statutory power but would only be assisting the Association to hold an election at its own request and not pursuant to a mandate of the law.

11. The decision of the Supreme Court on which the Learned Counsel relied arose under the following facts and circumstances. The institution in that case was a grant-in-aid institution. It was governed by the rules framed by the State Government in exercise of its executive power. According to those rules, an 'appeal was provided to the Director of the Education. Department of the Government, against any order made by the management of a private educational institution imposing the penalty. There was no power of review. Nevertheless a review Petition wasentertained and the order of the Deputy Director which was in favour of the teacher was set aside. That order wasquestioned in a Writ Petition before the Bombay High Court. The High Court held that as the rules had no statutory force, the High Court could not exercise its power under Article 226 of the Constitution. In fact, that was also the view of the Constitution Bench of the Supreme Court in The State of Assam -v.- Ajit Kumar Sarma, : (1966)ILLJ451SC . Relevant part of the judgment reads:

'(12)......it is not disputed before us that the Rules are mere administrative instructions and have not the force of law as statutory rules . They therefore confer no right on the teachers of private colleges which would entitle them tomain rain a Writ petition under Art. 226 for the enforcement or non-enforcement of any provisions of the Rules'

The view taken by the High Court was reversed by the Supreme Court holding that so long the challenge before the High Court was against an order made by an officer of the State Government, the Writ Petition was maintainable and the High Court was in error in holding that the WritPetition was not maintainable. Relevant portion of that judgment reads :

'We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management. But since this petition is principally directed against the order passed in quasi-judicialproceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders not conferred on him, we hold that the appellant was entitled tomaintain the petition under Article 226 of the Constitution'.

Thus it may be seen the view taken was, for the reason, a quasi judicial order was made on a review Petition, by the Director setting aside his own earlier order though there was no permission for review.

12. In my opinion, the said decision is distinguishable for these reasons. The officers of the Education Department while exercising power under the grant-in-aid code exercise the power of the State. But the exercise of that power in the case before the Supreme Court was not regulated by a statutory provision, but by an executive order. It is well settled that power to make an executive order under Article 162 is co-extensive with that of Legislature and therefore if a field is not occupied by law it is open for the executive to regulate any of its affairs by means of executive orders. According to the earlier decisions of the Supreme Court, if the appellate power was exercised under the grant-in-aid code, in such a case no Petition under Article 226 could be entertained either challenging its validity or for enforcing it. The Supreme Court in the above case has stated that whether an order was made in exercise of the powers of the State by an officer of the State pursuant to or in violation of a statutory provision or non-statutory Rules framed by the Government, it is amenable to the Writ Jurisdiction of this Court under Article 226 of the Constitution.

13. In the present case it cannot be said that the Commissioner of Labour or the Assistant Commissioner, in issuing the notice of election, is exercising the power of the State as officers of the State. The following illustrations would make the point clear.

(i) Take a case in which an employee in a shop or establishment is dismissed from service. A Writ Petition questioning the validity of the said order made by a private employer even assuming that it was made in violation of principles of natural justice or the rules framed by the management of the shop or establishment concerned, cannot be entertained under Article 226 of the Constitution. But if the same order is confirmed or reversed by the appellate authority constituted under the Shops and Establishments Act, the order of that appellate authority is amenable to writ jurisdiction, for in that case, undoubtedly, the appellate authority exercises the power of the State conferred on it under the Shops and Establishments Act.

(ii) Take a case of a teacher in a private educational institution recognised and/or receiving grant-in-aid from the State Government, and there is no law enacted by theLegislature which constitutes an appellate authority to hear appeals against the imposition of penalty by the private management, but there is a provision in the grant-in-aid code, framed by the State Government in exercise of its executive power, providing an appeal to the Director of Public Instructions. In such a case the appellate authority making an order on an appeal would be making such order not under a statutory provision, but under a provision, made in an executive order. Nevertheless he would be exercising the power of the State. The ratio of the decision of the Supreme Court in Tikaram's case, is that in such case also the order of the Director of Public Instruction is amenable to writ jurisdiction.

14. It is pertinent to point out in both the types of cases illustrated above the officers of the State Government exercise the power of the State whether under a statutory provision or under the Rules framed by the State Government. In other words, he exercises the sovereign power of the State.

15. The present case is entirely different. It is not by virtue of the statutory rules or orders made by the State Government in exercise of its executive power, the power or duty to hold an election in respect of office-bearers of the trade-union is conferred on an officer of the State. It is in Rules framed by the trade-union concerned for its ownconvenience it has incorporated a provision enabling it to request any person to become a Returning Officer or to request the Commissioner of Labour to nominate a Returning Officer. Therefore, in this case, the Commissioner of Labour or his nominee does not exercise the power of the State under the authority of the State, conferred on him by statutory rule or executive orders but he acts on the authority given to him by a resolution of the trade-union pursuant to its own rules which have no statutory force. The mere fact that the model rules indicate that a trade-union could have a rule so as to enable to request the Labour Commissioner to nominate a Returning Officer does not in any way alter the position in law. The ratio of the judgment in Writ Petition No. 11276 of I984,(ILR 1985 KAR 411) applies on all fours to this case and in the result I hold that the Writ Petition is not maintainable.

16. The right of an office-bearer of a Trade Union registered under the Trade Unions Act, is similar to the right of an office-bearer of a society registered under the Societies Registration Act. If such right is infringed, as held by the Allahabad High Court in Triloki Nath's case the remedy is civil action, and not a Writ Petition.

17. Shri N. Devadas, Learned High Court Government pleader submitted that while dismissing the Petition, I should make it clear that the Returning Officer will have the liberty of continuing the calendar of events from the stage at which it was interrupted by an interim order made in the Petition, I decline to express any opinion on this for the reason. I have not gone into the merits of the controversy.

18. For the reasons aforesaid, I make the following order:

(i) The Petition is rejected leaving all other contentions of both the parties open.


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