S.U. Khan, J.@mdashThrough this writ petition initially order dated 28.6.2006 (contained in Annexure-3 to the writ petition) through which Respondent No. 1 recognised the constitution of Central Committee of North Eastern Railway Mazdoor Union (N.E.R.M.U.) was sought to be quashed. In Annexure-3 it is mentioned that in the 46th annual session held in between 22.6.2006 to 24.6.2006 the persons mentioned below were elected as Central office bearers of N.E.R.M.U. in which Shri K. L. Gupta at Sl. No. 6 was shown to have been elected as General Secretary. North Eastern Railway Mazdoor Union is Respondent No. 4 and has been sued through Shri K. L. Gupta. Further prayer is that Respondent Nos. 1 and 2, i.e., Registrar and Deputy Registrar, Trade Union be directed to hold election of entire general body, central council and the different 38 branches of N.E.R.M.U. Respondent No. 3. Through amendment some paragraphs have been sought to be added in the writ petition including paragraph No. 31A. Through the said paragraph it has been stated that Respondent No. 4 illegally cancelled/terminated the primary membership of the Petitioner on 12.2.2007, i.e., during pendency of the writ petition. Prayer for cancellation of the said order has also been sought. Amendment application dated 23.5.2007 is allowed.
2. Respondent No. 4 N.E.R.M.U. is a registered trade union registered under the Trade Union Act, 1926 and it has got its rules and by-laws. Respondent No. 3 has got three tier body, one is general body, the other is central council and the third is Branch Committee.
3. In the writ petition it has been mentioned that in accordance with Section 6(bb) of the Trade Union Act term of office bearers and Members of the Central council and the branches should not be for more than three years but Shri K. L. Gupta is annually being elected as General Secretary in the annual general session of N.E.R.M.U. and no elections are being held since 2002 except in Izzat Nagar, Bareilly Branch. It has also been stated that in the by-laws or the rules term has not been provided which is illegal and the said rules/by-laws also do not provide manner and procedure for holding the elections of the Central Council and different branches. It has also been stated that the membership of Respondent No. 3, i.e., North Eastern Railways, Gorakhpur is about 40,000 and general body should be of about 533 members.
4. From Annexure 3 to the writ petition it is evident that no election was held and only in annual session (adhiveshan) total 15 persons including office bearers and members were selected/decided.
5. In the counter-affidavit it has repeatedly been stated that in the petition Respondent Nos. 3 and 4 have been confused with each other at several places. However, it is not of much importance. As against the allegation of the Petitioner that there are 534 members of Respondent No. 4, it has been stated in para 29 of the counter-affidavit that there are only 392 members. However, in the entire counter-affidavit it has not been stated that any formality identified with election was followed. For election first of all there must be list of voters. Thereafter election programme must be issued by the authority competent to hold election which shall include the date of filing nomination, date of scrutiny, date of withdrawal and date of election. It has not been stated in the counter-affidavit that any such programme was issued by any authority. It has also not been stated that it was indicated to the members in general that election would be held in the annual session to be held in between 22nd to 24th June, 2006 at Fatehgarh. Accordingly, it cannot be said that any election worth its name was ever held. It has also not been stated that in what manner the 15 persons mentioned in Annexure-3 to the writ petition were selected/ declared in the aforesaid annual session to be office bearers and members of Respondent No. 4. It has also been stated in the counter-affidavit that the Petitioner has wrongly described himself as elected General Secretary in para 1 of the writ petition while he resigned/was removed from the said post. It has further been stated that Petitioner was also elected as Joint Secretary in the same manner as Shri K. L. Gupta was elected as General Secretary. However, this is also not of much importance. Petitioner could challenge the election even in his capacity as member. As far as cancellation of membership is concerned it is liable to be set aside as it has been done during pendency of the writ petition and without issuing any notice to him. The removal order was passed under Rule 17 (i) (b) of the Constitution and Rules which is Annexure-1 to the writ petition. The reason referred to in the order of removal is anti-union activities (without giving any particulars or details) which may include filing of the present writ petition. For pursuing a legal remedy a person cannot be removed from primary membership of a body.
6. Through Annexure-6 to the counter-affidavit dated 18.8.2007 exactly in same manner members and office bearers were declared in the Annual Session of Respondent No. 4 held from 29.5.2007 to 31.5.2007. Shri K. L. Gupta is shown to be General Secretary.
7. The Supreme Court in
15. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the Registrar of Trade Union, being a statutory authority, should be appointed for the aforementioned purpose. He, in our opinion, should also be appointed as an administrator and take over the management of the Union till holding of elections are complete. We do so with much reluctance. But, the reason therefore is that the Appellants should not be allowed to continue to function in the manner as they are doing, i.e., despite expiry of the tenure and under the interim order passed by the learned trial court. It is difficult to understand as to why the preparation of electoral roll could not be finalised. If the office-bearers are interested in carrying out their trade union activities although, they are entitled to contest the elections but should have at least agreed to finalisation of Electoral College. The Appellants having been elected for a definite term, it was their solemn duty to see that elections are held before their tenure comes to an end. We are not unmindful of the fact that the expiry of tenure by itself may not lead to the conclusion that continuation of the office-bearers in the office per se would be illegal. In the instant case, the Appellants are continuing in office because of the interim order passed by a court of law, which is per se unsustainable.
8. Learned Counsel for Respondent filed copies of certain decisions wherein it was held that in the dispute of election of a Trade Union Civil suit is a proper remedy. However, in the instant case Respondent No. 4 has not been able to show that any election worth its name was held hence it is virtually admitted to the Respondents that there was no election. Accordingly, there is no need to direct the Petitioner or any other person to approach the civil court for deciding the correctness or otherwise of the election.
9. Writ petition is allowed. Impugned alleged elections are set aside and Registrar, Trade Union is directed to hold fresh elections and meanwhile he should act as administrator and take over management of the union (Respondent No. 4). The elections must positively be held within three months from today. Registrar General is directed to send a copy of this judgment to Registrar, Trade Union, Labour Commissioner''s Office, G.T. Road, Kanpur Respondent No. 1 immediately.
