Sunil Ambwani, J.
1. Heard Shri Kesari Nath Tripathi, Senior Advocate assisted by Shri Naresh Kumar Pandey and Shri Chandan Kumar for the petitioner. Shri K.P. Singh and Shri Govind Saran appear for the Railways, Shri Siddhartha Singh and Shri Hem Pratap Singh appear for the proposed respondent No. 6. Shri Murlidhar, Senior Advocate assisted by Shri Ajai Kumar Sharma appeared for the respondent No. 5.
2. An application has been filed by Shri Shamim Ahmed for impleadment of North Central Railway Men's Union in the writ petition. The applicant has secured the recognition by polling the highest number of votes. It is contended that the applicant for impleadment is neither a necessary nor a proper party to the proceedings. Shri Kesari Nath Tripathi has relied upon judgment in Kesari Devi v. State of U.P. and Ors. 2005 (3) UPLBEC 2727 in submitting that a person, who has already succeeded in seeking recognition, would have no interest for impleadment and is not a necessary party to be heard in the matter.
3. The Trade Union seeking impleadment has secured the highest number of voles and is an interested party in the matter. The applicant may not be a necessary party. It is a proper party as all those parties, who had participated in the elections, are required to be heard, The Court, as such, exercised its discretion in impleading the applicant as respondent No. 6 to the writ petition. It has filed the written submissions, and was heard.
4. The petitioner is a registered trade union as per provisions of the Trade Unions Act, 1926 with its registration No. 9168/20.03 having its registered office at 464-B Nawab Yusuf Road, Allahabad. There are four unions recognised by the North Central Railways, in terms of the policy framed by the Ministry of Railways for recognising the trade unions. Consequent to the judgment of Supreme Court, approving the judgment in the Southern Railways Mazdoor Union v. Railway Board, decided by the Madras High Court and after accepting the report of the Chairman, 'Secret Ballot Committee' appointed by the Ministry of Railways, the elections were notified under the 'Modalities for Conducting Secret Ballot for the Purpose of Granting Recognition to Registered Railway Trade Unions Representing All Categories of Group 'C' & 'D' Employees of Indian Railways'. On 15.10.2007, the petitioner and the other three unions filed their nominations. The results were declared on 3.12.2007 in which the petitioner secured 20593, out of 59568 valid votes cast and out of a total membership of 70499. Since it polled 29.21% of the percentage of total electorate as against the required 30% and 34.57% of the total votes polled as against 35% of the required percentage, it was not recognised Out of the four trade unions, the North Central Railways Mazdoor Union polled 29583 votes, which is 41.96% of the single vote of the total electorate and 49.66% of the total valid votes polled. The North Central Railways Union, the only successful trade union to have secured more than minimum percentage of votes was recognised as a single union to deal with the North Central Railways for all purposes.
5. The petitioner had earlier filed a Writ Petition No. 56503 of 2007, R.P. Singh v. Union of India and Ors. which was dismissed on 10.11.2007 on the ground that the election process has commenced and election symbol has been allotted to the parties, who have filed their nomination papers. The Court as such was not inclined to go into the issue raised as after elections are over. It will be. open to the petitioner to raise such legal and factual issues of incorrect address furnished in the nomination paper of respondent No. 4.
6. After the elections are over, the petitioner again filed a Writ Petition No. 61261/2007, which was disposed of on 12.12.2007 with the request to General Manager, North Central Railway, Allahabad to examine as to whether objections, if any filed by the petitioner, are referable to Clause-27 of the Modalities and in case such objections are found to be legally entertainable, he may proceed to decide the same on merits after notice of the objections.
7. In the meantime, the petitioner received a letter from the Deputy Chief Personnel Officer/I.R. for General Manager (P) North Central Railways on 12,12.2007 de-recognizing the petitioner and requesting to hand over all the facilities as it has secured only 29.21% votes of the total electorate and 34.57 % votes of the total valid votes and has not secured 30% of the total electorate and 35% of the total valid votes as desired in terms of the para-5 of the Modalities of the 'Secret Ballot Committee.'
8. The petitioner filed a representation and a copy of the order with the General Manager along with the order of this Court to decide the election dispute. The General Manager decided and rejected the election dispute on 24.12.2007 and communicated the same to the petitioner stating that the eligible unions contested the elections on the basis of the names of the union and the allotted symbols and not on the office address, Therefore, it will not be legally correct to declare valid votes cast in favour of the North Central Railways Karamchari Sangh as invalid and add them in favour of the petitioner. Aggrieved the petitioner has filed this writ petition.
9. Shri Kesari Nath Tripathi, learned Senior Advocate appearing for the petitioner, has raised following issues:
(i) The Secretary of the respondent No. 5-union committed fraud/misrepresentation in getting itself registered with the Registrar, Trade Unions, U.P. by furnishing a wrong address proof at 464-B Nawab Yusuf Road, Allahabad, which was in fact the address of the office of the petitioner and thereby misled with the add of the advertisement and newspaper reports and has taken advantage of its provisional acceptance of the nominations which were never later decided resulting in wastage of votes which may have been polled in favour of the petitioner and should be reduced to recount the percentage of votes.
(ii) The petitioner polled 34.57% of the single votes of the total valid votes which should be rounded off to 35% to secure the minimum percentage of votes for the purposes of recognition. The principle of rounding of will be applicable as in the present case the representation of the petitioner union which polled 20593 out of total 59568 valid votes wit! the total number of 70499 votes of the workmen, the second large majority, will lose the right to represent its members and thereby violat the object of the modalities for recognition providing for more than on union for the purpose of recognition.
(iii) The prescription of 30% of the single vote of total electorate and at least 35% of the valid votes polled is nut to restrict the membership to only one union. The refusal of representation of the second largest union which has failed to secure the minimum number of percentage of fraction of less than half would amount to violation of the rights of the members of the petitioner-union under Article 19(1) (a) and (c) of Constitution of India.
10. The Industrial Disputes Act, 1917 (in short the Act), was enacted to make provisions for the investigation and the settlement of industrial disputes. The Act provides for machinery provision;; for industrial arbitration for the resolution of existing or apprehending disputes without prescribing statutory norms for industrial relations. A 'union' is defined under 2 (qq) to mean a Trade Union registered under the Indian Trade Unions Act, 1926. The object of the enactment of Trade Unions Act, 1926 was to end the unequal fight between the employer and employed, in the industries engaged in mass-production of commodities, services and large scale industrial units. The replacement of the employers by the Corporations with immense economic powers concerned the State not only with the problem of law and order but to place the employers and the employed on equal terms. The Trade Unions Act, 1926 provides for registration of Trade Unions for the purposes of regulating the relations between the workmen and the employers or between the workmen and workmen and for imposing restrictive conditions on the conduct of any trade or business and to include freedom of two or more Trade Unions without affecting any agreement between the partners, as to their own business or between the employer and the employed and any agreement in consideration of sale of goodwill of a business or of an instruction in any provision., trade or handicapped (Section 2 (h); 'trade union' as defined in the Trade Unions Act, 1926).
11. Any seven or more members of a trade union may, by subscribing their names to the rolls of Trade Union, and by otherwise complying with the provisions of the Act with respect to registration, apply for registration to the trade unions. The registration of a trade union presumes the satisfaction of the Registrar that the trade union has complied with all the requirements under the Act. The certificate may be cancelled under Section 10 or withdrawn on the application of the trade union or if the Registrar is satisfied that the certificate has been obtained by fraud or mistake or that the trade union has ceased to exist, or has wilfully after notice of the Registrar contravened any provisions of the Act. The right and liabilities of the registered trade union are enumerated in Section 15. The Act gives immunity to the office bearers of the trade union to criminal conspiracy in trade disputes, under Section 17 and in civil proceedings under Section 18. The disqualification of office bearers of the trade unions is provided under Section 21-A. The trade union may be dissolved under Section 27 with a notice to the Registrar, and is required to file returns under Section 28.
12. The Industrial Disputes Act, 1947 or the Trade Union Act, 1926 do not provide for recognition of the Trade Union by the employer. The State of Maharashtra enacted 'Maharashtra Recognition of the Trade Unions and Prevention of Unfair Labour Practices Act, 1971' (the Act of 1971) to provide for recognition of a trade union for facilitating collective bargaining for certain undertakings, to codify their right and obligations and to confer certain powers on an unrecognised union to provide for declaring certain strikes and lock out as illegal etc.
13. The Balmer Lawrie Worker's Union challenged the provisions of Section 20 (2) of the Act of 1971, providing recognition of only one Trade Union and giving it exclusive rights to represent workmen of arty undertaking, consequently denying the right to a workman to appear or act or to be allowed to represent in any proceeding under the Industrial Disputes Act, 1917 as violative of fundamental freedom to form association guaranteed by Article 19(1) (c) of the Constitution of India. The writ petition as well as appeal were dismissed. Deciding the Civil Appeal No. 3527 (NL) of 1984 on 21.12.1984, Balmer Lawrie Workers' Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. : 1985(50) FLR 186 (SC) the Supreme Court held that since alter the amendment and introduction of Section 2-A of Industrial Disputes Act, 1947, by which the discharge, dismissal, retrenchment or termination of the services of individual workman were treated as industrial dispute, notwithstanding that no other workman nor any union of workmen is a party to the dispute, and thus assuring individual workman the protection of grievance that a worker may have to take the services of a Trade Union of which he is not a member. It was no longer available to the petitioner to challenge Section 20(2) of the Act of 1971 as violative of Article 19(1) (a) and Article 19(1)(c) of the Constitution of India. The Supreme Court held that conferring the status of recognised union, on the union satisfying certain pro-requisites which the other union is not in a position to satisfy, does not deny the right to form association. In fact the appellant-union has been registered under the Trade Unions Act and members have formed their association will tout let or hindrance by any one. Not only that the appellant union can communicate with the employer, it is not correct to say that the disinclination of the workmen to join the recognised union violates the fundamental freedom to form association. It is equally not correct to say that the recognition by the employer is implicit in the fundamental freedoms to form an association. Forming an association is entirely independent and different from its recognition. Recognition of an Union confers rights, duties and obligation, Non-conferring of such rights, duties and obligations on an Union other than the recognised union does not put it in an inferior position, nor the charge of discrimination can be entertained, The members of a non-recognised association can fully enjoy their fundamental freedom of speech and expression as also to form the association.
14. In para-17 of the judgement, the Supreme Court further said:
17. The legislature has in fact taken note of the existing phenomenon in trade unions where there would be unions claiming to represent: workmen in an undertaking or industry other than recognised union. Section 22 of 1971 Act, confers some specific rights on such non-recognised unions, one such being the right to meet and discuss with the employer the grievances of individual workmen, The Legislature has made a dear distinction between individual grievance of a workman and an individual dispute affecting all or a large number of workmen. In the case of even an unrecognised union, it enjoys the statutory right to meet and discuss the grievance of an individual workman with employer. It also enjoys the statutory right to appear and participate in a domestic or departmental enquiry in which its member is involved. This is statutory recognition of an unrecognised union. The exclusion is. partial and the embargo on such unrecognised union or individual workman to represent workmen is in the larger interest of industry, public interest and national interest. Such a provision could not be said to be violative of fundamental freedom guaranteed under Article 19(1) (a) or 19(1) (c) of the Constitution.
15. The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 provides for recognition of a Trade Union which represents the largest number of workmen working in the undertaking to acquire the status.
16. In Food Corporation of India Staff Union v. Food Corporation of India and Ors. : 1995 (71) FLR 278 (SC) the Supreme Court, in order to facilitate collective bargaining, found that in order to see that the Trade Union which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishments, the trade union is first required to get itself registered under the provisions of the Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body. When there are more than one registered trade union in an establishment, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because of the trade union with minority of the workmen/employees, the settlement, even if any arrived between the employers and the union, may not be acceptable to the majority and may not result in industrial peace. The Supreme Court found that the method to find out as to who should be the sole bargaining agent, has been a matter of discussion and some dispute. The 'check off system' which once prevailed has lost its appeal. The method of secret ballot was gradually accepted. The method, however, should be so adopted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industrial establishment or undertaking. The Food Corporation of India and the Unions agreed to follow 'Secret ballot system' in order to yield correct result. The Supreme Court, after hearing the counsels appearing in the matter, laid down certain norms and procedures in the nineteen-points to determine the strength of all eligible unions by secret ballot and then provided a mechanism for dealing with a situation which was not covered by the procedure and directed the elections to be held.
17. The Indian Railways is one of the largest employer in the country. It is divided into 16 zones. Each zones has Trade Unions representing the categories of Group 'C' & 'D' employees. At the apex level the entire unions spread over 16 zones of the Indian Railways and are affiliated either to the, National Federation of Indian Railwaymen, or All India Railwayman Federation.
18. The Railway Board's letter dated 26.6.2002 addressed to all General Managers; regarding the request of Bhartiya Railway Mazdoor Sangh and others for grant of recognition provided for preparing and accepting multiple membership, giving recognitions to unlimited number of unions to represent the same workmen, and to do away with the requirements in the earlier norms that membership of atleast 30% of the 'work force' was exclusive to that union. The letter was challenged by the Southern Railway Mazdoor Union in Madras High Court. By the judgment between Southern Railway Mazdoor Union v. Railway Board and Ors. 2001 (2) LW 407, the Madras High Court, while allowing the writ appeal, and while quashing the order of the learned Single Judge, as well, as the order impugned, held that the railways are owned and operated by the Union of India, It's budget is to be passed by the Parliament. The moneys spent by it is a public fund. It must therefore operate on commercial lines and functions reasonably, non-arbitrarily and rationally. The Madras High Court found that recognition of large number of unions results in expenditure of crores of rupees. It found that at the current rate of Rs. 12.00 crores annual expenditure on all the office bearers of one recognised union, at all levels, the expenditure on the office bearers of ten recognised unions would be Rs. 120 crores. If the workmen were among themselves to agree to help each other so that each can enjoy the privilege extended by the employer to the office bearers of the unions, the number of additional unions that may in future claim recognition would be many more. In paras 32 to 35 the Madras High Court observed:
32. The right to form trade unions is not merely a statutory right under the Trade Unions Act, 1926, but after the coming into force of the Constitution of India, a fundamental right guaranteed under Article 19(1)(c) of the Constitution. That fundamental right, however, does not include as a concomitant right, the right to attain the objects of the union, and the right to strike, as held by the Constitution Bench in the case of All India Bank Employees Association v. National Industrial Tribunal : 1961 (3) FLR 307 (SC) : AIR 1962 SC 172. The Court observed at paragraph 22 of the judgment:
On the construction of the Article, itself, apart from the authority to which we will refer presently we have reached the conclusion that even a very liberal interpretation of Sub-clause (c) of Clause (1) of Article 19 cannot lead to a conclusion that the trade unions have a guaranteed right to an effective collective bargaining or to strike either as part of collective bargaining or otherwise.33. The exercise of the right to form and be a member of an Union is not dependent upon the recognition being given to that union by the employer. A Constitution Bench in the case of Ghosh v. Joseph : 1962(5) FLR 511 (SC), held that Rule 4-B of the Central Civil Services (Conduct) Rules, 1955 restricting the right of a government servant to become a member of an association not recognised or when recognition is withdrawn, is unconstitutional.
34. Trade Unions, however, have neither a fundamental nor a statutory right to recognition except in some States like Maharashtra, where recognition of Unions is regulated by statute. Under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 there can at any one time be only one recognised union in an undertaking with at least thirty per cent of the workmen as it's members. There is no Central law providing for recognition of unions.
35. The concept of recognition came into vogue in the context of formation of multiplicity of trade unions each of them claiming to be representative of the workmen, recognition being given to the union considered to be the most representative. Having too many recognised unions would defeat the very object of recognition. For a long time, the objective of one union for one industry has been advocated. The Supreme Court in it's judgment in the case of Balmer Lawrie Workers Union v. Balmer Lawrie & Co, Ltd. 1985 (50) FLR 186 (SC) at paragraph 12 has observed that 'National Commission on Labour chaired by late Sri P.B. Gajendragadkar, former Chief Justice of India, after unanimously and wholeheartedly expressing itself in favour of the concept of recognised union and it being clothed with the powers of sole bargaining agent with exclusive right to represent the workmen, addressed itself only to the question of method of ascertaining which amongst various rival unions must be accorded, the status of recognised union. Planting itself firmly in favour of the democratic principle, it was agreed that the Union which represents the largest number of workmen working in the undertaking must acquire the status, as that would be in tune with the concept of industrial democracy, The fissures arose as to the method of finding out the membership. The Commission had before it two alternate suggestions for ascertaining membership (i) verification of membership by registers, and (ii) by secret ballot. As there was sharp cleavage of opinion, the commission left the question of adopting one or the other method in a given case to the proposed Industrial Relations Commission which was recommended to be set up if the recommendation of the Commission were to be accepted...' The cleavage of opinion has continued as before and the Industrial Relations Commission is yet to be constituted.
Thereafter in paras 47 to 53 it was observed:
47. The Railway Board, despite the Pandora's box being opened by it's new policy, seeks to recognise an unlimited number of unions at a mind boggling cost to be met from the State exchequer, solely on the strength of their membership figures set out in their returns filed before the Registrar of Trade Union, even though to it's knowledge those figures for the presently recognised unions and for those seeking recognition add up to much more than twice the number of those actually employed as non-gazetted workmen; and under the new policy there can hypothetically be an many recognised unions as there are workmen and even with a much lesser number, every workman can be an office bearer of a recognised union entitled to numerous special privileges paid for by the State.
48. The letter of 28.10.1985 which sets out the acceptance by the Railway Board of the recommendations of the Railway Reforms Committee to double the minimum percentage of the non-gazetted workmen required to be members of the unions which seek recognition from 15% to 30%, did not prescribe the mode now prescribed by the Board in it's letter of 26.6.2002 for ascertaining the membership of the unions. By recommending the increase of the minimum percentage from 15 to 30; the Railway Reforms Committee obviously did not intend to pave the way for recognition of unlimited number of unions. What was obviously intended was to reduce the number of unions that could be recognised at any given point of time from six which was the maximum if each recognised union was to have at least 15% of the work force as it's members, to three, which is the maximum number of unions that can be recognised on the basis that each such union has as it's members at least thirty per cent of the non-gazetted work force.
49. That this prescribed percentage of workmen was to be the exclusive members of the recognised union is embedded in the very prescription of a minimum percentage, as the very object of that prescription is to ensure the representative character of the Union and to place a ceiling on the number of unions that can be recognised at anyone time.
50. The object of recognition of the union being to place the employer and employees in a position where the union which is recognised, being one which truly represents a substantial body of workmen, can discuss the problems of the workmen with the employer, negotiate with the employer, and arrive at a settlement binding on the employer and the workmen, according recognition to numerous unions whose members are also members of other recognised unions, is not only superfluous, but is self defeating, undermining the very object of recognition. With mumerous bargaining agents the number of friction points would not only esenlate but the reaching of a settlement satisfactory to all would become far more difficult, if not impossible.
51. The policy now adopted in the impugned order is not a continuation of an old policy, but 'is an altogether new policy intended to accord recognition immediately to the Bhartiya Railway Mazdoor Sangh whose request for recognition had been turned down after it's list of members had been scrutinised years earlier, inter alia, for the purpose of disregarding duplication of membership among that and other recognised unions. Along with this union it is proposed to give recognition to others as well, under the new criteria which ignores duplication of membership among the recognised unions. It also opens the doors for recognition of an unlimited number of other unions in future.
52. The claim that there is no change in policy as the strength of unions which were accorded recognition in the year 1965 by the Southern Railway was ascertained from the figures reported by them to the Registrar of Trade Unions, is misleading. Question of duplication of membership among the unions did not arise at that time as the aggregate of the membership claimed by the two recognised unions was less than the number of non-gazetted employees, and no one doubted the fact that each of those unions had as it's exclusive members thirty percent of the non gazetted work force.
53. The fact that the Trade Unions Act does not prohibit simultaneous membership in an unlimited number of union is wholly irrelevant for the purpose of according recognition. Recognition is not a right guaranteed to all Unions registered under the Trade Unions Act. The Trade unions Act does not deal with recognition. It does not either require or prohibit the employer from giving recognition to unions registered under the Act.
19. The matter was taken by Railway Board to the Supreme Court. While dismissing the Special Leave to Appeal (Civil) 3716/2004 on 8.3.2004, the Supreme Court observed:
We see no reason to interfere with the decision of the High Court. In fact, the earlier SLP filed at the instance of another trade union had been dismissed by this Court. The High Court's reasoning for requirement of 30% membership exclusively for the membership of the Union is upheld. The High Court has correctly relied upon the decision of this Court in Food Corporation of India Staff Union v. Food Corporation of India : 1995 (71) FLR 278 (SC), to hold that the method was a natural, rationale and viable alternative. The SLPs are, accordingly, dismissed.
20. A 'Secret Ballot Committee' was appointed by the Ministry of Railways vide their order ERB-1/2007/23/13 dated 3.4.2007. The recommendations of the Committee were accepted by the Ministry of Railways on which railways prepared 'Modalities for Conducting Secret Ballot for the Purpose of Granting Recognition to Registered Railway Trade Unions Representing Ail Categories of Group 'C' & 'D' Employees of Indian Railways'. All existing trade unions of railways registered for atleast one year on 31.12.2006 were eligible to contest the elections. They were required to subscribe to the 'code of discipline' and 'code of conduct during the election proceedings, which are provided in paragraphs 3 and 4 of the Modalities. The Modalities provided for norms for recognition, entitlement to vote, the preparation of voter's list, a nodal body to conduct and supervise secret ballot, publicity concerning secret ballot, filing of nominations, scrutiny of nomination, withdrawal of nominations, election schedule, printing of ballot papers, polling booths, polling agents etc. in paragraphs 5 to 26 of the Modalities and the counting & declaration of final result in para 27. Paras 5 and 27 of these modalities relevant for the case are set out as follows:...
5. Norms for recognition :-(i) AH unions getting 30% or more of the single vote of the total electorate shall be considered recognized.
(ii) If only one union gets 30% or more of the single vote of the total electorate and some other union polling next maximum number of votes, gets at least 35% of the valid votes polled, then both these unions will get recognition. (This assumes that 35% of votes polled will be less than 30% of the total electorate).
(iii) If situations us stipulated in (i) and (ii) above don't arise, then the two unions getting maximum number of votes will be recognised provided each one individually gets more than 35% of the valid votes polled.
(iv) In case there is no union fulfilling the conditions laid down in (i), (ii) and (iii) above, then union which gets maximum number of valid votes polled will be recognised provided it gets at least 20% of the valid votes polled. In this case only one union will get recognised.
(v) If no union gets even 20% of valid votes polled, then no union will stand recognised.
27. Counting & Declaration of final result :-All sealed covers received from Presiding Officers containing election report. & Postal Ballots received will be opened by Returning Officer in the presence of Union representatives to prepare & compile final election result (Proforma at Annexure-VI). The result will be declared by the General Manager of the Zonal Railway.
Any dispute regarding ejections/counting of votes shall be raised on the day following the last day of the election/declaration of result. After expiry of this period, the result declared by the General Manager of the Zonal Railway will be treated as final.
21. A close reading of norms of recognition would show that all unions getting 30% or more of the single vote of the total electorate shall be considered recognised. If any one union gets more than 30% of the single vote of total electorate, and some other union polling next maximum number of votes, gets at least 35% of the valid votes polled, then both these unions get recognition with an assumption that 35% of the voles polled will be less than 30% of the total electorate. If both these conditions do not arise, then the two unions getting maximum number of votes will be recognised provided each one individually gets more than 35% of the valid votes polled. In case no union fulfils these conditions, then the union which gets maximum number of valid votes polled will be recognised provided it gets atleast 20% of the valid votes polled. The norms thus provide for recognition of at least one, and not more than three unions.
22. The modalities also provide for resolution of the disputes regarding election/counting of votes in para-27, to be raised on the day following the last day of the election/declaration of result After expiry of this period, the result declared by the General Manager of the Zonal Railway will be treated as final.
23. Shri Kesari Nath Tripathi submits that the respondent No. 5 misled the Registrar of Urn Trade Unions as well as the Railways by mentioning the wrong and incorrect address of its central office 464-13 .Nawab Yusuf Road, Allahabad, which was in fact the registered office address of the petitioner. Its nomination was accepted provisionally. The Returning Officer, however, did not decide the question of the validity of its nomination and that till date no proof of certificate of allotment has been produced by the respondent No. 5, by which it could claim that 464-0 Nawab Yusuf Road, Allahabad was its registered address. Inspite of the objections filed on 2.11.2007, the authorities allotted symbol to respondent No. 5 purportedly granting it provisionally.
24. The petitioner filed a writ petition, which was disposed of with observations that the election process has commenced and that the petitioner can subsequently raise the factual issue of incorrect address. The issue, however, has not been decided, even after it was raised in a dispute after the election process was completed and result was declared. The order of the de-recognition of the petitioner-union dated 12.12.2007 was as such illegal and is liable to be set aside.
25. Shri Tripathi further submits, that the nomination of respondent No. 5 had to be rejected and that the votes secured by respondent No. 5 are wasted votes and thus these votes should be reduced in the number of total valid votes cast. Upon reducing these wasted votes in favour of the respondent No. 5, the percentage of petitioner would rise above 35% of the total votes cast.
26. Shri Tripathi further submits, relying upon paragraphs 46 to 47, that 34.57 % of the total valid votes cast, the fraction of 0.57 should be considered/treated as one and should be rounded off to 35%. According to him, in the present case, the principle of rounding off will be applicable as it serves the purpose of modalities and the elections for recognition of the trade union. He submits that where desired number of votes have to be counted in percentage, the principle of rounding off will apply to complete the percentage. In such case, a cent in the percentage would be treated as one. A reading of the modalities would also suggest the same. He has relied upon judgements in State of Punjab v. Asha Mehta : 1997 (11) SCC 410, and State of U.P. and Anr. v. Pawan Kumar : 2005 (104) FLR 582 (SC) : 2005 (28) AIC 774 : 2005 (2) SCC 10, in support of his submission. '
27. Shri K.P. Singh and Shri Govind Saran, on the other hand, submit that all the grounds raised in the representation have been decided by the competent authority. There was no procedural illegalities or irregularities in the order dated 24.12.2007. The furnishing of wrong address by one union will not vitiate the election as, the elections were held on the basis of name and the symbol of the union and not on the office address. In Writ Petition No, 56503 of 2003, R.P. Singh v. Union of India, the High Court has held that issue of address is a factual issue and thus the findings given by the General Manager on' the issue are factual and cannot be considered Under Article 226 to the Constitution of India. The fact, that the voters could be misled, has to be proved by evidence and that the suit is proper remedy for grievance raised by the petitioner.
28. They submit that in their representation under clause-27 of the Modalities, there was no mention of the principle of rounding off, the percentage and even otherwise/in the present case there was a shortfall of 256 votes which could not be compensated by principle of rounding off. In the circumstances the principles of fraction mathematics cannot be invoked.
29. Shri Muralidhar, Senior Advocate, appearing for the respondent No. 5, would submit that the principle of a fractional mathematics would be applicable where the different is only one, and. not in a case of percentage. A traction of more than half is one, is a principle applicable where one is a whole and not a percentage. In the present case there is difference 256 votes. The petitioner was required to achieve votes of at least 35% of the total votes polled. He has emphasized on the words 'at least' before 35% in submitting that the difference of 256 votes cannot be rounded off to the percentage of 35.
30. The first argument regarding incorrect address of respondent No. 5. though attractive, will not give any benefit to the petitioner in the elections to find out the union representing the majority of workmen for recognition by the employer. The elections were not contested and had nothing to do with the office address. The issue, whether respondent No. 5 misrepresented the Registrar, Trade Unions in furnishing incorrect address and that on the representation made by the petitioner the nomination of respondent No. 5 was provisionally accepted, will not, in any manner, affect the election result. The competent authority has correctly found that the election was contested on the name of the union and the election symbol allotted to it, and not on the office address which was not mentioned on the ballot papers. The fact, whether the advertisements made or the election propaganda misled the voters, is a matter of fact to be proved by evidence. Such an issue cannot be considered under Article 226 of the Constitution of India.
31. The principle of wasted votes will not be applicable in the present case as the principle applicable in England has not been accepted by the courts administering election laws in India. The right to be elected is not a fundamental right. It is only a statutory right, to be governed by the relevant statute. The principle of wasted votes presumes that the disqualification of the candidate was known to the electors and that they still voted for the candidate. In such case the wasted votes may not be counted. It is a matter of fact, to be proved by evidence. In the present case, it cannot be said that the respondent No. 5 was disqualified by mentioning an incorrect office address of the Trade Union in the nomination paper and that such disqualification was known to the electors, who voted for the respondent No. 5. The defence taken by respondent No. 5, that it's address was correctly mentioned that they applied for correction of the address which was not carried out and thus the certificate of registration carried the old address which was not rectified, need not be considered. The election was not contested and would not be affected by the mention of incorrect address. The question of provisional acceptance of the nomination may also not detain the Court as the respondent No. 5 has also not secured the minimum number of votes and has not been recognised.
32. Coming to the principle of rounding off, there is a clear distinction in the judgment of the Supreme Court in its applicability. The principle has not been made applicable in the examinations where their minimum marks are to be secured or to pass examination or to secure a division. In the matters of reservation, appointments, and elections, where a minimum percentage is to be secured to get selected or elected, this principle has been called in aid applied subject to the fraction of more than half to be treated as a whole for the object sought to be achieved.
33. The Supreme Court has not accepted the principle of rounding off in case of qualifying marks and in the case of minimum percentage of marks for passing the examination. However in Stale of Punjab v. Asha Mehta : 1997 (11) SCC 410, the question, whether 32.5% could be rounded off to 33%, a procedure which the Public Service Commission in fairness, was found to be adopting in all other cases was accepted. The Supreme Court did not find any good ground to interfere in the matter. In State of U.P. v. Pawan Kumar Tiwari : 2005 (104) FLR 582 (SC) : 2005 (28) A1C 774 (SC) : 2005 (2) SCC 10, para. Supremo Court held in para- 7 as follows:
7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored, 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.
34. In Anand Singh Kunwar and Ors. v. Election Commission of India : 2007 (7) SCC 234 : 2007 (58) AIC 89 (SC), the Supreme Court held in para-3 as follows:
3. The main contention of the petitioner in this petition is that a per the census data the population of the Scheduled Tribes is 3% of the total population of Uttaranchal and as per the delimitation of the State of Uttaranchal, seventy (70) single member territorial assembly constituencies were created in the State of Uttaranchal. In reference to Article 332 (3) of the Constitution of India the number of seats as far as possible is to the extent of 3% of the seventy (70) seats of the State of Uttaranchal. That comes to 2.1 which is nearer to two (2) seats than to three (3) seats, but the Election Commission has fixed three (3) seats for Scheduled Tribes which is beyond the provisions of the Constitution.
35. In Bhudev Sharma v. District Judge, Bulandshahr and Anr. : 2007 (115) FLR 1006 (SC) : 2007 (60) AIC 27 the Supreme Court applied the principle of rounding off in giving a seat to the physically handicapped persons for direct recruitment. There were 30 posts for which the selection Was held. It was found that 2% of 30 is 0.6 and since it was more than half, it was rounded off to one out of 30 posts.
36. The object of modalities for conducting secret ballot for granting recognition to the registered trade unions is to reduce the number of unions, which are dealing with the Railways for collective bargaining and also to reduce the cost incurred on the number of unions (Southern Railway Mazdoor Union's case) running in crores of rupees. The object of modalities is not to recognise only one union. There may be more than one recognised Trade Union but not many. The norms for recognition can possibly admit up to three unions for recognition. The polling result would show number of votes polled as follows:
--------------------------------------------------------------------------------S.N. Names of Total Total valid Votes Votes VotesUnion Electorate votes cast obtained obained as obtained (With by the % age of as % ageregn. No.) union Electorate of validvotes cast--------------------------------------------------------------------------------1. NCRES 20593 29.21 34570(9168)--------------------------------------------------------------------------------2. NCRKS 7998 11.34 13.426(9275)--------------------------------------------------------------------------------3. NCRMU 29583 41.96 49.662(9160)--------------------------------------------------------------------------------4. RMU (By- 70499 59568 1394 01.97 02.340II-7867--------------------------------------------------------------------------------
37. The petitioner has polled 20593 votes out of total electorate of 70499 and 59568 valid votes. The voice of 20593 Croup 'C' and 'D' employees in the North Central Railways to be spoken through the petitioner will he silenced. If the office bearers of respondent No. 6 union, who have given an undertaking to the Court that they would be espousing the cause of all workmen, do not listen to them, or have a different ideology, and are not in favour of them, as they are members of other union, they will not be in a position to assert themselves for collective bargaining for their welfare.
38. There are several committees giving permanent participation to the unions. Those committees are not only important for welfare of the workmen but are also important for the overall functioning and good governance of the railways. The petitioner union with 29.21% of the total employees will not have any say in these committees inspite of having second largest membership of the workmen in the North Central Railways. These committees arc:
1. PNM (Permanent Negotiation Machinery) meeting.
2. PREM (Participation of Railway Employees in Management Meeting.
3. Non-Payment meeting.
4. Colony Care Committee meeting.
5. Sanitation Committee meeting.
6. Area Housing Committee meeting.
7. Hospital Visiting Committee meeting.
8. AEIN Informal meeting.
9. SBF (Staff Benefit Fund) meeting.
10. Instead above all for oilier problems of the staff routine meetings are held between Union and the Administration at Headquarters Division & Branch level.
39. In addition to the above, the recognised unions have special facilities for passes and leave in their branch council meeting; divisional council meeting; working committee meeting' central executive committee meeting and general council meeting. The second largest union will be denied these facilities putting them to serious handicap.
40. The Court asked a specific question to the Counsel appearing for Railways, whether the unrecognised unions/associations have any say in the matters relating to welfare of the staffs and employees in the railways. Shri Govind Saran has produced a letter dated 8.2.2005 of the Joint Director, Estt. (L) Railway Board by which the Railway officers have been told, not to correspond or to enter into a formal dialogue with unrecognised unions/associations. The representations, however, have to be examined on merits and necessary action taken as deemed fit and that proper attention should be given to. appropriate authorities to these grievances. It will be useful to quote the letter as under:
BHARAT SARKAR GOVERNMENT OF INDIA RAIL MANTRALAYA MINISTRY OF RAILWAYS (RAILWAY BOARD)
No. E(LR)III/2005/UTF-1 New Delhi, dated 8.2.2005The General ManagersAll Indian RailwaysSub : Policy on dealing with unrecognized Unions/Associations.
*****
Instructions have been issued from Board from time to time regarding the policy on dealing with un-recognised Unions/Associations. The board guidelines in this regard are as under:
(i) Representations art received from the un-recognized Unions/Associations and the issues raised therein are examined, on merits, and necessary action taken as deemed fit;
(ii) No correspondence/formal dialogue is entered into with such unrecognized Unions/Associations;
(iii) Though no formal dialogue with un-recognized Unions/Associations is envisaged, staff grievances coining from any source including unrecognised Unions/Associations should receive proper attention of the appropriate authorities.
Recently a section of Loco Running staff had met the Hon'ble Minister for Railways. Consequent to the meeting, the Hon'ble Minister for Railways desired that whenever asked for by the representatives of Loco Running Staff or other such organizations, they should be given a patient hearing by the administration as its convenience.
In view of the above it is requested that efforts should be made to ensure proper implementation of the above mentioned instructions; Please acknowledge receipt.
(Nadira Razak)
Joint Director, Estt (L)
Railway Board.
41. The un-recognized union as such has almost no say in the matter of welfare of the staff, in the collective bargaining or in other matters. It will be extremely unjust and harsh in refusing representation to 20593 employees out of total number of 70499 and to stop them from participating in the activities of their welfare. The principle of rounding off would thus have its applicability in the present case in public interest. The object of the modalities was not to de-recognise the union which has second largest majority and lacks only for fraction of a percentage (less than half) of the minimum to be secured for recognition.
42. The question, whether a de-recognition of the union, which does not secure minimum percentage, will act in violation of the Article .19(1) (a) and 19(1) (c) of the Constitution of India, has been considered in Balmer Lawrie's case. The right to form an association, is not defeated if the union is not recgonised. However, if the voice of the second largest majority in a zone of the Railways is not heard on the ground, that it has not secured a fraction of the percentage of votes, which is less than one, it would certainly amount to, in view of the circular dated 8.2.2005, (a policy of the railways, not to enter into any formal dialogue and not to correspond with any un-recognised union), violation of the fundamental rights of the members of the union guaranteed by the Constitution of India under Article 19(1) (a) and (c). The modalities are not the law within the meaning of Article 12, to put reasonable restrictions on such rights.
43. The writ petition is allowed. The votes polled by petitioner will be rounded off to 35%, and that the petitioner would thus be entitled to be treated as a recognised trade union. The impugned orders dated 12.12.2007 and 14.12.2,007 passed by respondent Nos. 3 and 2 respectively are quashed. There shall be no order as to costs.