Gujarat High CourtIndrajitinh Vijaysinh Solanki & Ors vs The Commissioner Of Labour & Ors on 9 July, 2014Author:Paresh UpadhyayBench:Paresh UpadhyayC/SCA/7447/2014                                     CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 7447 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE PARESH UPADHYAY

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1   Whether Reporters of Local Papers may be allowed to see Yes
    the judgment ?

2   To be referred to the Reporter or not ?                              Yes

3   Whether their Lordships wish to see the fair copy of the No
    judgment ?

4   Whether this case involves a substantial question of law as No
    to the interpretation of the Constitution of India, 1950 or any
    order made thereunder ?

5   Whether it is to be circulated to the civil judge ?                      No

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      INDRAJITINH VIJAYSINH SOLANKI & ORS.                 ....Petitioners
           Versus
      THE COMMISSIONER OF LABOUR & ORS.                    ....Respondents
================================================================
Appearance:

MR. SHALIN MEHTA, SENIOR ADVOCATE WITH
MR. P.C. CHAUDHARI, ADVOCATE for the Petitioners No. 1 - 7

MR. K.M. PATEL, SENIOR ADVOCATE WITH
MR. D.G. SHUKLA, ADVOCATE for the contesting Respondents No. 4 & 5

MR. MIHIR JOSHI, SENIOR ADVOCATE WITH
MR. KUNAN NAYAK, ADVOCATE FOR M/S. TRIVEDI & GUPTA for the
Respondent No.3 - Electricity Company




                                Page 1 of 32
       C/SCA/7447/2014                                   CAV JUDGMENT



MR YOGEN N. PANDYA, ADVOCATE for the Respondent(s) No. 6 - Chief
Election Officer

MR. RASHESH RINDANI, AGP for the Respondents No.1 & 2 - State
===========================================================




         CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

                           Date : 09/07/2014


                           CAV JUDGMENT1.   Challenge in this petition is made to the action of the
respondent No.6, who was appointed as Election Officer,
pursuant to the directions of this Court, as contained in the
judgment       dated    23.12.2013      recorded   on     Special      Civil
Application No.288 of 2013. Under these circumstances, to
appreciate the controversy in the present petition, the
circumstances leading to filing of Special Civil Application
No.288 of 2013 ('the earlier petition' for short) needs to be
kept in view. It is recorded that the contesting respondent in
this petition is respondents No.4 and 5. In earlier petition also,
the contesting respondents were respondents No.4 and 5.
Respondents No.4 and 5 in both the petitions are the same
persons. The present petition is contested, principally on the
ground of maintainability. The contest is from the respondents
No.4 and 5. Therefore the question of maintainability of this
petition needs to be adjudicated first.2.   Mr.K.M.Patel, learned Senior Advocate for respondents
No.4 and 5 has vehemently submitted that, this petition is not
maintainable. According to respondents No.4 and 5, thePage 2 of 32C/SCA/7447/2014                                      CAV JUDGMENTpetitioners need to file an election petition, or they can avail
an alternative remedy of approaching the Industrial Court as
provided underSection 14Aof the Trade Unions Act, 1926, or
can approach the Civil Court by filing a Civil Suit. Reliance is
placed on number of authorities in this regard, which are
referred hereinafter. In substance, the contest of respondents
No.4 and 5 is that, this Court may not go into the merits of the
matter.3.    On the other hand, Mr.Shalin Mehta, learned Senior
Advocate for the petitioners has vehemently contended that,
respondents No.4 and 5 have attempted to frustrate the order
of this Court dated 23.12.2013 in the earlier petition and it was
facilitated by respondent No.6. It is submitted that since
respondent No.6 was acting under the orders of this Court, his
mischief needs closer scrutiny by this Court and the same be
examined by this Court. It is also submitted that, there is no
other remedy to the petitioners, atleast no efficacious remedy
in the facts of this case. On behalf of petitioners also, number
of authorities are cited to counter the authorities relied on
behalf of respondents No.4 and 5.4.    Having heard learned advocates for the respective
parties, on the question of maintainability of this petition, and
having gone through the material on record, this Court finds as
under. It is also recorded that, while examining the contention
of maintainability at the instance of respondents No.4 and 5,
the   merits     of     the   matter,    the     locus   and   interests   of
respondents No.4 and 5, are also recorded and discussed,
since they are interwoven.Page 3 of 32C/SCA/7447/2014                                            CAV JUDGMENT5.    The controversy is with regard to the office bearers of the
Electricity Mazdoor Sabha. The said Union represents the
workers      of the Torrent Power Limited (erstwhile - the
Ahmedabad            Electricity        Company        Limited).     The    present
respondents No.4 and 5 were the President and the General
Secretary, respectively, of the said Union, since years and it
was the case of the present petitioners, who were the
members of the said Union that, though the maximum term of
the office bearers                of the Union, as prescribed in the
constitution of the Union, and the maximum term as per the
statute, was already over since long, the office bearers i.e.
respondents No.4 and 5, were not holding election of the said
Union, and under these circumstances, a petition was filed
before this Court being Special Civil Application No.288 of
2013.6.    The circumstances leading to the filing of the said
petition,      the        stand    of    the     respective    parties      therein,
observations, findings and final directions given by this Court
in the said petition, all are relevant, and therefore the entire
judgment of this Court in Special Civil Application No.288 of
2013, dated 23.12.2013 is quoted hereunder."SPECIAL CIVIL APPLICATION NO. 288 of 2013
             CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
                                  Date : 23/12/2013
                                    CAV JUDGMENT1.        The petitioners herein are the members of
     Electricity Mazdoor Sabha, a registered union,
     who have by filing the present petition prayedPage 4 of 32C/SCA/7447/2014                                            CAV JUDGMENTfor issuance of a writ or direction to direct
respondent No.2-the Registrar of Trade Unions
to immediately hold the election of the office
bearers of the Electricity Mazdoor Sabha under
its supervision and control to elect new office
bearers for the period 2012 onwards before any
negotiation/settlement                with      regard         to      wage
revision is finalised.2.      The relevant facts and the contentions of
the parties in light of which the aforesaid
prayer falls for consideration may be set out.3.      It is the grievance of the petitioner that
the existing office bearers of the union have
been avoiding the holding of elections which
are due from October, 2012 and for which the
process was required to be started in August-
September, 2012. It is stated that in order
that     the       elections     are         held    in     time,      they
addressed          letters   and      representations             to   the
Deputy       Commissioner        of     Labour       on     28.08.2012.Thereafter            again           on            11.09.2012,            a
representation was addressed to the Registrar,
Trade Unions and the Deputy Labour Commissioner
respectively,          requesting            them    to     immediately
start the election process and hold elections.
It is further stated in the petition that along
with     the       aforesaid     letter        dated        11.09.2012,
list of signatures of 1700 workers out of total
2600      members       of     the       union        was     forwardedPage 5 of 32C/SCA/7447/2014                                          CAV JUDGMENTemphasizing          immediate          holding      of        elections
which were already due. It is the further case
that         individual            as         well        as        joint
representations            dated     13.09.2012,          25.09.2012,
11.10.2012, 21.12.2012, 24.12.2012, etc., were
addressed           to      the         competent         authorities
reiterating the request.3.1     A case is put forth that the elections to
the union are not being conducted deliberately
and it is suspected that the existing office
bearers            may      unauthorisedly            enter          into
settlement           with        respondent          No.3       Company
regarding wage revision against the interest of
the     workers'          community          at   large.       In   this
context it was submitted that the settlement
has to be arrived at with proper representation
of the workers and after proper negotiations.
It was submitted that unless the negotiation
for settlement are undertaken by and through
the duly elected representatives of the union,
the workers' rights and interests may suffer in
ultimate analysis. It was submitted that the
holding of elections without any delay and in
the free and fair manner was thus necessary.3.2     Respondent Nos.4 and 5 being the President
and the General Secretary of the union filed
their affidavit-in-reply dated 23.01.2013, and
contended          that    the    petitioners         have      wrongly
stated that they were the members, as they havePage 6 of 32C/SCA/7447/2014                                                  CAV JUDGMENTbeen suspended for 10 years by the union in its
Annual General Meeting. It was stated that the
union       had         arrived      at      settlement             with     the
Company in the interest of the workers. It was
stated that the Executive Committee members of
the respondent union in its meeting held on
28.08.2010              before       the         last        election        had
unanimously decided to resolve that the tenure
of the next elected Executive Committee wouldbe    upto         31.12.2012.         Respondent            Nos.4       and     5further stated that they were elected in July,
2007 and again in 2010 and during their tenure,
the settlement in question was arrived at, they
having negotiated with the Company. With regard
to holding of elections it was averred that
Annual         General           Meeting           was       convened            on
24.12.2012          and     another         Meeting          in    connection
with the election of the office bearers was
convened           on    29.12.2012              and    in    that       regard
respondent No.2-Registrar of Trade Unions was
intimated by letter dated 22.12.2012.3.3     Respondent No.3 Company responding to the
petition            filed          affidavit-in-reply                       dated
19.01.2013 and inter alia opposed the case of
the petitioners, stating in paragraph 9 of the
petition that the petition is an attempt to
disturb        industrial           peace          prevailing          in     the
respondent              Company.       It        was     contended           that
Electricity             Mazdoor      Sabha         is    a    trade         union
different from its office bearers and there canPage 7 of 32C/SCA/7447/2014                                                CAV JUDGMENTbe no bar to negotiations with the union. It
was      contended              that     the       petition         involved
dispute amongst the members of the union. It
was     further          contended         that         the    Company     had
entered        into        settlement            with    trade     union       on
22.03.2010            underSection           18(1)read     withSection 2(p)of the Industrial Disputes Act,
1947      which          was      arrived          at     in     course        of
conciliation proceedings and the period of said
settlement was from 01.04.2009 to 31.03.2013.
Since the period of operation of the settlement
came to end on 31.03.2013, the union has raised
fresh demands by its letter dated 10.11.2012.
It is stated that the Company and the union
have been amicably settled the demands by way
of mutual negotiations. The affidavit of the
Company            further       mentioned          that        during     the
continuance                of       such           negotiations            and
deliberations, it received copy of the present
petition to know about the dispute regarding
elections of the office bearers of the union,
therefore,            by        letter      dated         15.01.2013           it
inquired,           and      said       union       by        letter     dated
16.01.2013 clarified that the Samanya Karobari
Samiti       in      its       meeting       dated       16.07.2012        and
thereafter in the General Meeting of the union
held on 29.12.2012, resolved that the present
Committee           of     the     office          bearers       have     been
authorised           to     deliberate             and    negotiate        the
settlement and to hold the election once the
settlement            has        been       arrived            between     thePage 8 of 32C/SCA/7447/2014                                                CAV JUDGMENTparties.3.4    Reply        affidavit       on     behalf          of    respondent
Nos.1 and 2 is also filed in which it is stated
on behalf of Deputy Labour Commissioner that
pursuant to representation of petitioners dated
28.08.2012 and 11.09.2012 regarding holding of
election to the union, the office of the Deputy
Labour Commissioner informed respondent Nos.4
and 5 by letter dated 03.10.2012 that election
process        was       required     to       be     initiated        within
time as the term had already expired. It isfurther stated that as respondent Nos.4 and 5ignored the directions from the office of the
Deponent, a show cause notice dated 18.01.2013
for cancellation of registration of the union
was issued. It was further stated that in theTrade Unions Act, 1926there was no provision
for    disqualifying            the     office         bearers        of    the
union for not holding the election timely.3.5     The         respective           parties           filed        their
rejoinder                affidavits             and        sur-rejoinder
affidavits. Respondent Nos.4 and 5 denied that
1700     members          had   joined          the    petitioners             in
requesting for holding of immediate election as
claimed.           The    pleadings        contained            allegations
and    counter-allegations                 in       this    regard.        With
regard to the Meeting dated 29.12.2012 it was
the     case       that     the     said        Meeting         was    called
pursuant to notice dated 14.12.2012. In that itPage 9 of 32C/SCA/7447/2014                                                 CAV JUDGMENTwas     resolved           by    passing           Resolution        to       give
authority            to        the        existing         Committee            to
deliberate with regard to the pay-scales. It
was      further           resolved               that     the       existing
Committee of the office bearers would continue
in respect of negotiating on the new pay-scales
applicable from April, 2013.4.      Heard learned advocate Mr.T.R. Mishra for
the       petitioners,                learned            senior        counsel
Mr.Mihir           Joshi    appearing             for    M/s.Trivedi          and
Gupta with learned advocate Mr.K.B. Nayak for
respondent          No.3        and    learned           advocate      Mr.D.G.
Shukla       for      respondent           Nos.4         and    5.     Learned
Assistant Government Pleader appeared on behalf
of respondent Nos.1 and 2 authorities to assist
the Court.4.1     It was submitted by learned advocate for
the petitioner that attempt to thwart and delay
the    election           by     respondent             Nos.4    and      5   was
evident from the facts of                           the     case. It           was
submitted that though the term of the office
bearers of the union has been over, the office
bearers             have             unauthorisedly                continued
themselves in the office. By referring to the
affidavit-in-reply                   of    the       Company,          it     was
submitted            by         learned           advocate         for        the
petitioner           that       the       stand     taken       by     it     was
indicative           that       the       Company        and    the      office
bearers        are     hand-in-glow.               He     submitted           thatPage 10 of 32C/SCA/7447/2014                                           CAV JUDGMENTelections are overdue and required to be held
under supervision of an independent authority.
He     then         additionally           submitted          that    the
petitioners are also entitled to participate in
the elections. He submitted that the Resolution
was passed to suspend the petitioners from the
membership,          which      was      not      approved      by    the
Deputy Registrar of Trade Unions, and the same
was cancelled and the petitioners continued to
the members.4.2     In     support     of      his         contentions,      learned
advocate           for   the    petitioner             relied   on    the
decisions inSharma B.C. and another Vs M.L.
Bhalla and others[AIR 2006 SC 3293] as well as
inNorth Eastern Railway Employees' Union Vs
Third       Additional         District          Judge,       Farukhabad[AIR 1988 2117].4.3     Learned          advocate          Mr.D.G.        Shukla      for
respondent Nos.4 and 5 submitted that the said
respondent was elected as office bearers of the
Union in the past year also, that they were
instrumental in negotiating the settlement with
the company. The settlement was arrived at for
the period from 01.04.2009 to 31.03.2013, under
which       the      workers       could         get    the     monetory
benefits to their benefit and the total amount
ran into about Rs. 75 crores. On the basis of
affidavit in reply, it was further contended
that in the last election held on 27.09.2010,Page 11 of 32C/SCA/7447/2014                                                CAV JUDGMENTboth       the           petitioners          also     contested            the
election to the post of General Secretary but
were not elected.4.4     Learned advocate for the respondent Nos.4
and 5 relied on these decisions to buttress his
contentions:               (i)     Trilokinath             Vs     Allahabad
Divisional Branch of All India Postal Workers
Union,       Class         III,     Allahabad        [AIR        1957      Allh
234]; (ii) O.P. Gupta Vs Union of India[2001
LLR 125 (Raj)]; and (iii) Tata Workers Union Vs
State of Jharkhand[2002 (III) LLJ 210].4.5     Learned senior counsel shri Mihir Joshi
with learned advocate Mr. K. B. Naik for M/s.
Trivedi        and        Gupta,       appearing      for        respondent
No.3-company submitted that the anxiety of the
company            was     to     see      that      the        process        of
settlement with the workers is not stalled. It
was submitted that three years settlement was
entered            into     by     the       Union    which          was       in
particular benefit of he members of the union-
all    the         workers.       It     was      submitted       that      the
company        was         for    industrial          peace        and     for
negotiating the settlement, as the period of
earlier            one      has        expired       and         therefore,
interested           to     see    that       the    election        to    the
office bearer of the union are held without
unnecessary delay.5.      The Constitution of the Electricity MazdurPage 12 of 32C/SCA/7447/2014                                               CAV JUDGMENTSabha-respondent Union produced at                                Annexure-L
at page 25, regarding election to the Union,
rule     35        deals    with       the       election         rules.      It
contemplates              for        appointment          of       selection
officer, providing that such officer shall not
be one having direct or indirect interest with
any candidate or any panel of candidates. The
duties of the election officers are mentioned.
The rules also deal with the manner of voting
and the steps in the election process until
declaration of the results. The terms of office
is provided for 2 years.5.1     From        the    facts       narrated          above      and    the
pleadings          and     contentions            of    the       respective
parties, certain factual aspects emerged which
could not be disputed. Firstly, the term of the
present office bearers of the respondent-union
already expired in September, 2012. At the end
of the two years term, elections were required
to be held, which are not held. Therefore there
is    no     gainsaying          that        the   election          to    the
office        bearers           of    the        union       is    overdue.
Secondly, there has been repeated request not
only by the petitioners, but there has been a
strict             intimation            from          the         competent
authorities           to    the       office       bearers         who     are
elected in the last elections and continuing in
office, to start the election process and to
hold the election. On record, its letter dated
18.01.2013           produced           at       page        82     of     thePage 13 of 32C/SCA/7447/2014                                                  CAV JUDGMENTcompilation of the petition, letter from the
Deputy        Registrar,              Trade       Unions          wherein         a
serious exception is taken for not initiating
the election process and for not holding the
election           and    to    show      cause         as    to      why    the
registration             of     the       union         should         not       be
cancelled. It further appears, as noted above,
by     another           letter         dated          15.01.2013,           the
Registrar           Trade        Union           intimated         that       the
resolution No. 2 and 3 passed by the Union in
the     general          meeting         dated         29.12.2012            were
cancelled as the elections were not held and
the      constitution            of       the         Union       was      being
violated by not holding the election.5.2     Thirdly, requiring the holding of timely
elections          are     emphasized             in    the    context           of
undertaking               and          continuing              with          the
negotiations             for    settlement             of    wages,        etc.,with the Company. Fourthly, there cannot be two
views      that      the       settlement,             etc.,       and     other
matters relating to the rights and interest of
the     workers          has    to     be        negotiated         with      the
employer-Company                 by       and          through          elected
representatives.                The    elections            are     therefore
necessary so that the workers can choose their
representatives for the purpose.5.3     In     the       next    place,          as    coming        out     from
paragraph 4.7 of affidavit-in-reply on behalf
of respondent Nos.4 and 5, that the executivePage 14 of 32C/SCA/7447/2014                                               CAV JUDGMENTcommittee           members      of    the        respondent-Union            at
its meeting held on 28.08.2010 before the last
election,           unanimously          decided         to    extend     the
tenure         of        the     executive             committee         upto
31.12.2012. In meeting held on 12.07.2012, it
was resolved by the committee members to submit
the     charter          of    demand       for        revision     of    pay
scales as the existing settlement to expire on
31.03.2013. It was also proposed to postpone
the election of the committee members and to
hold       the      elections         after       new       memorandum        of
settlement              was    arrived       at.       It     was   further
intimated           that       the     resolution             whereby     the
petitioners and other seven members were came
to be suspended was also not approved and it
was further stated that those persons continues
to    be    the members of                the Union. By             another
letter dated 05.03.2013, the very authority has
required respondent Nos.4 and 5 to start the
election process stating that the term of two
years was already over.6.      A        contention           was        raised       by    learned
advocate            for        the       petitioner            that       the
petitioners apprehend seriously that they would
not be allowed to participate, vote and contest
in the election. This grievance is outside the
compass            of    the     basic           controversy        in    the
petition           and    is    beyond           the   prayers      of    the
petition. Any dispute, if at all arises or any
objection to the eligibility of the petitionersPage 15 of 32C/SCA/7447/2014                                            CAV JUDGMENTas members entitled to participate or vote in
or contest the election would be in the nature
of election dispute arising in course of the
election           process     only,       and     if    such    dispute
arises,        it    would      have      to     be     dealt    with      in
accordance with law and the machinery provided
in law. The apprehension of the petitioners is
accordingly misplaced. Nothing further could be
observed in that regard.7.      It was stated that Election Officer has
been appointed, which shows inclination on part
of respondent Nos.4 and 5 to hold the election.
On    the     other      hand,       in     this      regard,    learned
advocate for the petitioner took exception and
contended that holding of the election should
be    supervised          and     controlled          by    independent
Officer and another person independent of any
side should be there to conduct the election.8.      Even        as   per    the       parties       came    out   with
their pleadings and contentions as above, they
all were in a way unanimous to the extent that
the elections are due and are required to be
held. The contesting parties in course of the
hearing        also      suggested        from     their       respective
side, the names of the persons who may be the
Election           Officer      to     conduct        the      elections.
However, the parties could not agree on the
name.Page 16 of 32C/SCA/7447/2014                                               CAV JUDGMENT9.      In     the       facts     and       circumstances          of    the
case, it would be proper and apposite that the
election to the office bearers of the union are
conducted           under         the        supervision            of        an
independent             officer.       The       election      should     not
only be held free and fair, but it must seen
that they are held free and fair. Therefore, a
direction          in     this     regard         is    issued      herein.
Since an independent officer is being directed
to be appointed to supervise the election, it
would be           in    fitness of the                things that the
entire       initiation          of    the       elections       including
the appointment of Election Officer is done by
such officer.9.1     In the context of the scenario emerging as
above, following directions would meet the ends
of justice.(i)       The election to the office bearers of the
respondent-Union shall be held within the time
frame provided herein and the same shall be
held under the supervision of an officer to be
appointed          by     the    Deputy          Labour     Commissioner
from his office.(ii) Such          officer        shall          be    other     than     the
Deputy Registrar, Trade Unions. The exclusion
of the Deputy Registrar, Trade Unions provided
hereinabove,             is     upon      joint        request      of    the
parties and it is clarified that his exclusionPage 17 of 32C/SCA/7447/2014                                               CAV JUDGMENTdoes not cast anything adverse on the person or
the post.(iii)              Such officer shall be named by the
office of Deputy Commissioner of labour within
one    week        from    the      date         of    receipt       of   this
order. For this purpose, the Registry of this
court shall forward a copy of this order to the
Dy. Commissioner of Labour.(iv) The officer to be appointed as per (i)
above,       shall        appoint       an       election      officer        to
conduct the election to the office bearers of
the Union, from amongst the persons experienced
in holding the Union election. While it would
be open for the supervising officer to take
suggestion from both the sides on the name of
the      persons          to     be        appointed          as    election
officer, the ultimate decision shall be taken
by him and shall be final and binding.(v)     The        officer      concerned             shall    appoint        an
election officer within ten days.(vi) The           election        officer            shall        thereafter
immediately          proceed          to    commence      the       election
process by publishing the preliminary list of
voters. The list of voters shall be displayed
at a proper place. The election officer shall
fix the election schedule wherein time bound
programme           for        inviting          objections          to    thePage 18 of 32C/SCA/7447/2014                                           CAV JUDGMENTpreliminary list of voters, considerations of
      the objections and publication for final list
      of voters shall be provided for.(vii)              The time wise stages shall also be
      fixed by the election officer in the election
      process for conducting the election right from
      the stage of filing of nominations, withdrawal
      of nominations, scrutiny thereof, publication
      of final list of candidates, holding of actual
      counting and the declaration of final result,
      which      shall      be   having       due       regard     to    rules
      provided in the constitution of the Union.(viii)             The election officer shall complete
      the entire election process within a period of
      six weeks from the date of his assuming the
      charge.(ix) The officer who will be appointed as per
      direction Nos.(i) and (ii) hereinabove by the
      Deputy Commissioner of Labour shall supervise
      the    process        of   election          to   ensure     that     the
      elections are held in accordance with law and
      in free and fair way.10.     The petition is allowed in terms of the
      directions and observations above."7.1   In above circumstances and pursuant to the above
quoted directions of this Court, the Deputy Commissioner ofPage 19 of 32C/SCA/7447/2014                                 CAV JUDGMENTLabour, Ahmedabad issued a notification on 28.01.2014, which
also contained the information that, present respondent No.6
is nominated as the Chief Election Officer. It is noted that, the
respondent No.6 is an employee of the respondent Company
and prior to the issuance of the directions by this Court, when
a show was made by the earlier office bearers (respondents
No.4 and 5) that they need to hold the election, at that time
also, said respondent No.6 was the Election Officer.7.2   The supervising officer, as nominated by the Deputy
Commissioner of Labour, pursuant to the above referred
directions, found that, respondent No.6 was acting arbitrarily
and therefore, he removed respondent No.6. Resultantly, the
time limit prescribed by this Court to hold the free and fair
election, could not be complied with and under these
circumstances, the Electricity Company moved this Court by
filing Miscellaneous Civil Application No.1326 of 2014 in
Special Civil Application 288 of 2013. The relevant part of the
order passed on the said application dated 07.05.2014 reads
as under."3.        The       present        Miscellaneous       Civil
      Application came to be filed by the applicant
      company-original respondent No.3 praying that
      opponent          No.3-Commissioner       of   Labour    and
      opponent No.4-Registrar of Trade Unions and
      Deputy Commissioner of Labour be directed to
      complete the elections within four weeks as
      directed in the aforesaid judgment of this
      Court.Page 20 of 32C/SCA/7447/2014                                               CAV JUDGMENT4. Having noticed from the facts stated in the
application              that    the      Election       Officer       was
abruptly           dropped       as      per     the    communication

dated 24th February, 2014 aforementioned, this

Court passed order dated 05th May, 2014 inter
alia requiring the said supervisor to file
affidavit and to explain the reasons because
of which he relieved the Election Officer,
more       particularly            because         it    amounted        to
breach of time bound completion of elections
ordered in the judgment.7. In the facts and circumstances of the case
and     in        light    of     the      scenario       obtained       as
above, it is considered trite that opponent
No.3-Commissioner of Labour and opponent No.4-
Registrar           of    Trade       Union       ensures      that    the
elections           to     the     Union         are    got    completed
within six weeks from today in compliance of
the directions by this Court passed in the
main         Special             Civil           Application.           The
modification              being     only         that   now     Opponent
Nos.3 and 4 Authorities shall supervise the
elections directly acting as supervisors in
substitution.             Mr.Sisodiya            who    was     as     such
unanimously appointed shall continue to act as
Election           Officer         and       shall       publish       the

election           programme        on     or     before      09th     May,
2014.8.    It     is     reiterated           that      it    will     be   the
responsibility of opponent Nos.3 and 4 hereinPage 21 of 32C/SCA/7447/2014                                      CAV JUDGMENTto ensure that the directions of this Court
      and     time      schedule    of      the   election      to    be
      notified by the Election Officer, as noted
      above,        are   strictly        adhered     to     and     the
      election shall be completed within six weeks
      from today as directed. Directions issued by
      this Court in main petition in paragraph 9.1
      shall remain binding to the Election Officer
      and continue to operate qualified by the order
      passed hereinabove.9. The present Miscellaneous Civil Application
      is allowed and disposed of in the aforesaid
      terms."7.3   Pursuant to the above directions of this Court, election
was held on 02.06.2014 and the results are out. As per the
said result, petitioner No.1 is declared elected as the General
Secretary and petitioner No.7 is declared elected as the
President of the Electricity Mazdoor Sabha. The contesting
respondents No.4 and 5, who were earlier the President and
the   General       Secretary,   respectively,      also   contested       the
election for the same posts, but have lost the confidence of the
majority members of the Union, as evident from the results.
The said result has come on record along with the report of the
Deputy Commissioner of Labour. As per the said result,
petitioner No.7 (Mr.Narendra Bhadoriya) secured 720 votes for
the post of President, while respondent No.4 (Mr.Virabhai
Parmar) secured 516 votes for the said post. For the post of
General Secretary, petitioner No.1 (Mr.Indrajitsinh Solanki)
secured 717 votes, while one Mr.Bharat Jadav secured 706
votes, and the respondent No.5 (Mr.A.P.Solanki) ranked thirdPage 22 of 32C/SCA/7447/2014                               CAV JUDGMENTsecuring 569 votes.7.4      The question before this Court now is, as to whether
this election result should be given effect to or not. The hurdle
is created by the respondent No.6 - the Election Officer, who
was appointed pursuant to the directions of this Court, and
who was continued as such by this Court, inspite of his removal
by the supervising authority of the Government. He has held
that, the petitioners No.1 and 7, who are declared elected as
the General Secretary and the President, as noted above, and
who represented the group, which had complained against the
earlier office bearers (respondents No.4 and 5) that though the
term of the office bearers of the Union had expired way back in
the year 2012, they were not holding the election, and
therefore the petition was filed before this Court being Special
Civil Application No.288 of 2013, were not the members of the
Union at all. It is this action of the respondent No.6, which is
questioned in this petition, and it is this petition which is
questioned to be not maintainable by respondents No.4 and 5.
It is this situation, with which this Court is faced with.8.    The glaring aspects as emerging from the record are
that, this petition is contested less on merits, more on
maintainability, because respondents No.4 and 5 are also very
sure that they have little less to say on merits, because the say
of the majority of the members of the Union about their
credibility is already reflected in terms, by way of the results of
the election, which is held pursuant to the directions of this
Court. What is submitted by respondents No.4 and 5 is that,
this Court can not entertain this petition, and the newly elected
office bearers need to file election petition, etc. In thePage 23 of 32C/SCA/7447/2014                                   CAV JUDGMENTmeantime, they, i.e. respondents No.4 and 5, will continue to
function as office bearers of the Union. On further scrutiny it is
found that, the real cause for this contest is that, it is this year
in which, the Union has to negotiate with the Management of
the respondent Company for the wage revision, etc. The stacks
involved in which, as claimed by all, is more than 100 crores of
rupees. Further, such settlement is not on yearly basis. It
comes after three to five years. If this aspect is kept in view,
the picture which emerges is that, it is the insistence of the
respondents        No.4   and   5,   whose      term   has   expired   in
September, 2012 as recorded in the judgment of this Court
dated 23.12.2013 that, it is they and they alone, who should
continue to function as the President and the General
Secretary, until the negotiations with the Management of this
financial stack are concluded. Their say, in substance is that,
though they might have lost the confidence of the majority of
the members of the Union, but let this petition be held to be
not maintainable, and by the time, the elected President and
General Secretary undertake the legal battle, that they were
the members of the Union, respondents No.4 and 5 may
continue to function as the office bearers of the Union. It is this
ingenuinity, which this Court is not inclined to uphold. This
Court further finds that, the effect of accepting the contention
of respondents No.4 and 5 about the maintainability of this
petition, would result in miscarriage of justice, and would also
frustrate the directions given by this Court in the earlier
petition vide judgment dated 23.12.2013. For these reasons,
the preliminary objection raised by respondents No.4 and 5
about the maintainability of this petition, needs to be and is
rejected.Page 24 of 32C/SCA/7447/2014                                          CAV JUDGMENT9.     It needs to be kept in view that, in a case where any
respondent contests the petition on the ground of it being not
maintainable, the Court should be very slow in entertaining
that contention, if ultimately the acceptance thereof is to result
in approving the ingenuinity of the said respondent, or that it
would result in frustrating the directions which are already
given by the competent Court, which, in the facts of this case,
is this Court.10.1           Mr.K.M.Patel,         learned         Senior     Advocate        for
respondents No.4 and 5 has relied on the following decisions in
support of his submissions.(i)     (2012) 3 SCC 522 - State of Gujarat versus Essar Oil
               Limited(ii)    (2011) 13 SCC 774 - Supreme CourtBar Association
               versus B.D.Kaushik(iii)   AIR       1998   SC   1531(1)         -   A.R.   Antulay    versus
               R.S.Nayak.(iv)    AIR 1988 SC 1796 - Birad Mal Singhvi versus Anand
               Purohit(v)     2004 (1) GLR 852 - Kanubhai Gulabsinh Parmar
               versus State of Gujarat(vi)    2008-II-LLJ 642 - Kathal R.K. Versus Registrar, Trade
               Union (Madhya Pradesh High Court)(vii) 2001-I-CLR         459      -     Borosil     Glass   Works       Ltd.Employees Union versus D.D. Bambode(viii) 2001-I-LLR 125 - O.P. Gupta versus Union of India(ix)    Special Civil Application No.4779 of 2010, dated
               27.04.2010 - Sanjay Kishanrao Suple versus State
               of GujaratPage 25 of 32C/SCA/7447/2014                                         CAV JUDGMENT10.2             It is recorded that, though number of authorities, as
quoted      above,       are    cited    by     learned   advocate      for     the
respondents No.4 and 5, to contest this petition on the ground
of maintainability, none of the authorities deals with the
situation, with which this Court is faced with, which is noted
above, and therefore, none of the authorities will take the case
of the respondents No.4 and 5 any further.11.    It   is    further      recorded       that,   once    this   petition    is
entertained, there is nothing to be adjudicated on merits. The
election of the Union is held under the supervision of the
Authorities of the Government, under the orders of this Court.The election result is placed on record by the Authorities of the
Government. There is no reason not to give effect to the said
election result. Thus, this petition needs to be entertained and
allowed. There are additional reasons to do so. They are as
under.12.    So far the respondents No.4 and 5 are concerned, except
that, they were the office bearers of the Union, for the term
which legally expired in the year 2012, beyond that they do
not have any locus. Their vested interest, as briefly touched
above, is evident from the further fact that, they could read
what was written on the wall and therefore, the present
elected office bearers were attacked on all counts. Their
annual      subscription        was      not      accepted,    and    the     said
subscription, which is of about Rs.100/- per annum, was forced
to be sent through electronic payment, registered post, etc.
and still it is claimed that they are not the members of the
Union, since they had not paid the annual subscription. TherePage 26 of 32C/SCA/7447/2014                                  CAV JUDGMENTis    ample     material   on   record     to   show   that,   since   the
subscription was not being accepted, those persons had
moved the Government, and the Government had in turn,
asked the explanation in that regard from the earlier office
bearers (respondents No.4 and 5), and what happened to that
is not further coming on record. Thus, principally, the contest is
that, since the presently elected President and General
Secretary had not paid their annual subscription of Rs.100/-,
they are not the legal members of the Union and therefore,
they could not be the voters, and therefore they could not
have been elected as the President and the General Secretary.
It is this fallacy, which this Court is not inclined to entertain.13.    The lack of bonafide of respondents No.4 and 5 does not
end there. Their Plan-B is ready. It is alternatively submitted
that these two persons, along with others, are already
suspended by the earlier office bearers, from the primary
membership. This Court could notice the change of stand of
respondents No.4 and 5 to suit their convenience, during the
course of hearing, since they could not decide as to because
they were suspended therefore their subscription was not
accepted, or that if their non-payment of subscription does not
work, then it is the alternative argument that though they
might have paid the subscription, but since we (respondents
No.4 and 5) had suspended them, therefore they were not the
members of the Union. So far the taking aid to the suspension
of the said two persons is concerned, it needs to be rejected
with serious criticism, since it is tainted with lack of bonafide of
respondents No.4 and 5 on more than one counts. Firstly, the
cause to suspend them was that, since the office bearers were
not holding election, they were making representations toPage 27 of 32C/SCA/7447/2014                            CAV JUDGMENTvarious Authorities and thereby the reputation of the Union is
tainted and therefore, it was necessary to suspend them from
the membership of the Union. The Registrar of the Trade
Unions, who is the competent Authority under the statute to
check such malfunction, is conscious about its implications and
it has already held long back that the said decision can not be
given effect to. The said decision of the Registrar of the Trade
Unions is not challenged by the then office bearers. Further,
the meeting in which, such a resolution is claimed to have
been adopted, was a non-quorum meeting, and in any case,
such a meeting was convened by the persons, who were not
the legal office bearers, since their term had already expired in
September, 2012. The Government Officer nominated by this
Court vide judgment dated 23.12.2013 had, in terms, directed
the present respondent No.6 - the Election Officer, not to act
contrary to the instructions of the Registrar of the Trade
Unions, so far the membership of the petitioners No.1 and 7
are concerned, and inspite of that, the Election Officer has, in
defiance of those instructions, refused to treat the petitioners
as the members of the Union. Under these circumstances, the
present petition came to be filed, to interfere in the action of
the respondent No.6, and this Court, in summer vacation, had
granted protection in favour of the petitioners vide order dated
21.05.2014. The said order is passed after hearing the
respondents, including the respondents No.4 and 5, who
appeared on caveat. Pursuant to the said order, with the
inclusion of the petitioners, election came to be held as per the
directions of this Court dated 23.12.2013, and the final result is
that, the petitioner No.7 and 1 are declared elected as the
President and the General Secretary, respectively. Under these
circumstances, at the stage of final hearing, this Court is facedPage 28 of 32C/SCA/7447/2014                                  CAV JUDGMENTwith the situation that, in the event, the action of respondent
No.6 is not interfered with, on the ground that let some other
Authority look into it, ultimately, the ill-design of the out going
office bearers will get approval of this Court, though they have
lost the confidence of the majority of the members in the very
election, which was held pursuant to the directions of this
Court. The objection of respondents No.4 and 5 is rejected, on
these additional grounds as well.14.   From the above, it is very clear that respondents No.4
and 5 have acted with complete lack of bonafide all
throughout. Further, with due seriousness, it is recorded that,
respondents No.4 and 5 have also tried to portray the
proceedings before this Court and outcome thereof with
disrepute.     Specific   reference     can    be   made   to   election
pamphlet at page 162, in the canvassing on behalf of the out
going office bearers against the present petitioners, who
succeeded in the election. The said pamphlet reads that, the
voters may keep in mind that the petitioners are in the fray of
election pursuant to the interim directions of the High Court
and until that case is concluded, which may take one to six
years, ultimately it is the wage revision of the members of the
Union, which will be obstructed. Let the myth of the outgoing
office bearers that they will be able to drag the litigation for
years, may be without succeeding, but surely without loosing
on merits, be disillusioned. It is recorded that, inspite of the
said warning, the results are not to their convenience. It is this
election result, the implementation of which is contested to be
not maintainable by respondents No.4 and 5. Relegating the
petitioners to any alternative remedy would ultimately prove
the said election canvassing to be right which needs to bePage 29 of 32C/SCA/7447/2014                              CAV JUDGMENTrejected and curbed with full force. Further, serious view could
have been taken by this Court, and initiation of appropriate
proceedings could also have been considered by this Court,
however this Court has restrained from doing so.15.    The stand of the company is that, they can not have any
preference, with whom they will negotiate. Their case is that
whosoever is legal representative of the Union, they will
negotiate with them. The stand of the Company does not need
any mention beyond this.16.    It is recorded that, though number of authorities are cited
by both the sides, since this petition is being decided in the
peculiar facts as recorded above and since it is held to be in
continuation of Special Civil Application No.288 of 2013, this
petition is held to be maintainable and therefore, those
authorities are not discussed. As recorded above, on merits,
there is hardly any dispute.17.    Considering the totality, this Court finds that, this petition
needs to be entertained and allowed.18.    In the result, the following order is passed.18.1          This petition is held to be maintainable and is
entertained.18.2          This petition is allowed.18.3          The action of the respondent No.6 impugned in this
petition is held to be illegal and arbitrary and the same isPage 30 of 32C/SCA/7447/2014                              CAV JUDGMENTquashed and set aside.18.4          The action taken report as submitted by the
Registrar of Trade Union - cum - Labour Commissioner, Gujarat
State is accepted, along with election result report annexed
therewith.18.5          The election result as pronounced by the Chief
Election Officer on 03.06.2014 and as submitted to the Deputy
Labour Commissioner, Gandhinagar on 03.06.2014, wherein
the petitioner No.1 is declared elected as the General
Secretary and petitioner No.7 is declared elected as the
President of the Electricity Mazdoor Sabha, in the election held
on 02.06.2014, is accepted and is directed to be given effect
to.18.6          Respondents No.4 and 5 are found to be guilty of
lack of bonafide all throughout and also found to have
attempted, to some extent, to obstruct the administration of
justice, but this Court has restrained itself from initiating any
proceedings against them.18.7          Rule is made absolute. No order as to costs.(PARESH UPADHYAY, J.)



19.1          After this judgment is pronounced, Mr.D.G.Shukla,
learned advocate for the respondents No.4 and 5 has
requested that this judgment be stayed for some time to
enable them to challenge the same, if so advised, before thePage 31 of 32C/SCA/7447/2014                              CAV JUDGMENThigher forum.19.2              Considering the totality and also the fact that this
Court has found the respondents No.4 and 5 to be guilty of lack
of bonafide throughout, and further that, they have also
attempted to obstruct the administration of justice, request
made on their behalf, needs to be and is rejected.(PARESH UPADHYAY, J.)
mhdave/3Page 32 of 32