Delhi District Court
National Federation Of Telecom ... vs Bharat Sanchar Nigam Limited on 7 December, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided by : Mr Jay Thareja, DJS
Civil Suit No: 53/11
Unique Case ID No. 02403C0027012011
National Federation of Telecom Employees
(BSNL), C-4/1, Bangla Sahib Marg,
New Delhi-110001
Through its Circle Secretary
Sh. Rajpal ... Plaintiff
Versus
1. Bharat Sanchar Nigam Limited
Janpath, Delhi
Through its CMD
2. Chief General Manager
Northern Telecom Region (BSNL)
Kidwai Bhawan (IInd Floor),
Janpath, New Delhi
3. BSNL Employees Union (EU)
209, Kidwai Bhawan,
Janpath, New Delhi-110001 ... Defendants
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
DATE OF INSTITUTION : 21.03.2011
DATE OF ARGUMENTS : 30.11.2011
DATE OF DECISION : 07.12.2011
JUDGMENT
1. This suit has been filed by the plaintiff against the defendants seeking reliefs in the nature of declaration(s) and injunction(s). The exact prayer made by the plaintiff is reproduced below:-
Civil Suit No.53/11 :2:"It is therefore most respectfully and humbly prayed that this Hon'ble Court may kindly be pleased to pass :-
i) a Decree of Declaration to the effect that number of voters for the election conducted on 01.02.2011 of Northern Telecom Region, BSNL Delhi be 1701 and not 1728 as shown in (Annexure-P2), basing thereupon the election results (Annexure-P3) have been declared on 04.02.2011.
ii) a decree of Mandatory Injunction thereby directing the Defendants to allow the Plaintiff to run and function concurrently at par with majority representative Union at NTR BSNL Delhi Level as they have obtained 851 votes against total valid voters of 1701, being more than 50% of the total votes of Delhi Circle.
Iii) Any other further order/orders as this Hon'ble Court deem fit and proper in the circumstances of the case and in the interest of justice."
2. In this suit, the plaintiff is a trade union registered under the Trade Union Act, 1926, working for promoting the interest, rights and liberties of the employees of the defendant no.1. The defendant no.1 is Bharat Sanchar Nigam Limited ('BSNL'), a public sector undertaking, the defendant no.2 is a regional unit of the defendant no.1, headed by Chief General Manager, who is responsible for conducting elections of the Delhi Circle of the defendant no.1 and the defendant no.3 is another trade union registered under the Trade Union Act, 1926.
3. The case of the plaintiff as discernible from the plaint is that in February 2011, an election was conducted by the defendants no.1 and 2 for the purpose of electing the 'Majority Civil Suit No.53/11 :3: Representative Union' of the defendant no.1. During the said election, the plaintiff, the defendant no.3 and 13 other trade unions had contested in 35 circles, including the National Telecom Region ('NTR') circle. In the election of the NTR circle, the plaintiff had obtained 851 votes and the defendant no.3 had obtained 441 votes out of the total sum of 1728 votes. After the conclusion of the election, the defendant no.3 was declared the Majority Representative Union because it had won in a majority of the circles. In respect of the election in the NTR circle, the plaintiff had found out that there were discrepancies in the voter list. The plaintiff had found that 32 voters1 were wrongly mentioned in the said voter list. Upon finding the said discrepancies, the plaintiff had approached the defendants no.1 and 2 and submitted that after deducting the 32 voters from the total voters i.e. 1728, it had obtained 50% of the votes in the NTR circle i.e. 851/1696. Therefore, as per 'Procedures for Electing Majority Representative Union through Secret Ballot, BSNL/5/SR/2005, June 2005' (henceforth the 'Handbook'), it was entitled to deal with the local interest of the workmen, within the NTR circle. The defendants no. 1 and 2 had considered the aforesaid representation made by the plaintiff. But, later on, rejected it on the ground that the plaintiff had not objected to the voter list prior to the date of election and thereby waived off its right to dispute the validity of the voter list used in the NTR circle.
4. According to the plaintiff, the rejection of the representation by the defendants was/is patently illegal, arbitrary 1 9 voters were working outside the NTR circle, 5 had died prior to the date of election i.e. 1.1.2011, 12 persons were mentioned twice in the voter list, 1 person had retired and 5 persons of Ghaziabad-II, UP had been mentioned in the voter list.
Civil Suit No.53/11 :4:and malafide. Therefore, it is entitled to the declaration(s) and injunction(s), as prayed for.
5. In the written statement filed on behalf of the defendants no.1 and 2, the defendants no. 1 and 2 have admitted that in February 2011, an election was conducted by them for the purpose of electing the Majority Representative Union of the defendant no.1. Further, the defendants have admitted that the election was conducted in 35 circles and the defendant no.3 was declared the Majority Representative Union because it had won in a majority of the circles. In respect of the averment made by the plaintiff that 32 voters were wrongly mentioned in the voter list used for the election in the NTR circle, the defendants no.1 and 2 have taken a technical objection that the claim made by the plaintiff is barred by estoppel because in accordance with circular(s) no. BSNL/5-1/SR/2010 dated 1.10.2010 and 9.11.2010 and meeting dated 13.1.2011, the voter list was finalized two times i.e. on 15.11.2010 and 20.1.2011 with the consent of the plaintiff. At both the instances, the participating trade unions including the plaintiff were given an opportunity to raise objections. After finalization of the voter list on 20.1.2011, a certificate was obtained from all the participating trade unions including the plaintiff containing the endorsement 'I have no objection of the voter list prepared by the circle Head Quarter on 20.1.2011'. Thereafter, a report was sent to the Head Quarter of the defendant no.1 at Mumbai on 28.1.2011, stating that the total voters was 1728 in place of 1697 for the NTR circle. In respect of the merits of the averment made by the plaintiff that 32 voters were wrongly mentioned in Civil Suit No.53/11 :5: the voter list used for the election in the NTR circle, the defendants no.1 and 2 have stated that the 5 persons, who are alleged to be of Ghaziabad-II, UP, were mentioned in the voter list because they were working on deputation at Ghaziabad-II, UP and originally belonged to the NTR circle; that 12 names were entered twice in the voter list due to a clerical error; that the 5 persons had died after finalization of the voter list on 20.1.2011 and that Ms. Sona Devi had retired before the election on 31.1.2011. For reasons best known to the defendants no.1 and 2, no averment has been made in the written statement regarding the 9 persons, who are alleged to be working outside the NTR circle.
6. In the written statement filed on behalf of the defendant no.3, the defendant no. 3 has reiterated the defence taken by the defendants no.1 and 2. In addition, the defendant no.3 has drawn reference to a letter dated 13.1.2011 and bye-law B1(6) (iv) of the Handbook. Drawing reference to the letter dated 13.1.2011, the defendant no.3 has stated that the voter list was revised in January 2011 with the consent of Sh. AP Tripathi, President of the plaintiff. Drawing reference to bye-law B1(6)(iv) of the Handbook, the defendant no.3 has stated that even if, the plaintiff denies the no-objection certificate dated 22.1.2011, the operation of the said bye-law debars the plaintiff from impugning the voter list used in the NTR circle.
7. The plaintiff did not file any replication to the written statements filed on behalf of the defendants. Consequently, on the pleadings of the parties, the following issues were framed on 24.9.2011 :-
Civil Suit No.53/11 :6:"1. Whether, in view of the certificate dated 22/1/2011, the plaintiff is estopped from challenging the voter list of the NTR Circle for the election of Majority Representative Union of Non-Executive Employees in BSNL? OPD.
2. Whether, in view of bye law B1(6) of the 'Procedures for Electing a Majority Representative Union through Secret Ballot', the plaintiff is barred from challenging the voter list of the NTR Circle for the election of Majority Representative Union of Non- Executive Employees in BSNL? OPD.
3. Whether the plaintiff is entitled to the declaration, as prayed for in clause (i) of the prayer in the amended plaint filed on 9/8/2011? OPP.
4. Whether the plaintiff is entitled to the injunction, as prayed for in clause (ii) of the amended plaint filed on 9/8/2011? OPP.
5. Relief."
8. During admission/denial of documents, the plaintiff had admitted all the documents filed by the defendants no.1, 2 and 3 including the signatures at point X on the no-objection certificate dated 22.1.2011. The defendants no.1 and 2 had admitted all the documents filed by the plaintiff except the letter dated 1.2.2011, Annexure P-7. Thereafter, all the parties had consented to the adoption of the procedure provided under Order XV Rule 3 of CPC. Therefore, no oral/ocular evidence was recorded on behalf of the parties.
9. I had heard Sh. MP Sinha, Ld. Advocate for the plaintiff, Sh. RS Rana and Sh. Sanjiv Kumar, Ld. Advocate for the defendants no.1 and 2 and Sh. Mukesh Kaushik, Ld. Advocate for the defendant no.3 on 18.11.2011 and 30.11.2011. The issue wise findings, in this case are as follows:
Civil Suit No.53/11 :7: ISSUE NO. 110. In support of the case of the defendants no.1 and 2 on this issue, the Ld. Advocate for the defendants no.1 and 2 had reiterated the contents of the written statement and submitted that in accordance with circular(s) no. BSNL/5-1/SR/2010 dated 1.10.2010 and 9.11.2010 and the meeting dated 13.1.2011 held by Sh. NK Pareekh, Assistant General Manager (HRD), NTR, BSNL, the voter list was re-finalized in January 2011 with the consent of the plaintiff. Therefore, the plaintiff is estopped from challenging the voter list used in the NTR circle.
11. In support of the case of the defendant no.3 on this issue, the Ld. Advocate for the defendant no.3 had drawn reference to the judgment of the Hon'ble Supreme Court of India in Shyamdeo Pd. Singh v Nawal Kishore Yadav, (2000) 8 SCC 46. In the said judgment, the Ld. Advocate had pointed out that the Hon'ble Supreme Court of India has referred to its earlier judgment in Hari Prasad Mulshanker Trivedi v VB Raju, (1974) 3 SCC 415 and quoted the following observation, ""The finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with an no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act. In the case in question the persons whose names were recorded in the electoral Civil Suit No.53/11 :8: roll and participated in the voting were not disqualified under Section 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of Section 2(1) (e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act."
Further, the Ld. Advocate had pointed out that after quoting the aforesaid observation and other relevant judgments, the Hon'ble Supreme Court of India has summed up the law in the following manner:
"26. To sum up we are of the opinion that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under sub- clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951.
..."
12. On the strength of the law laid down in the aforesaid judgment i.e. in Shyamdeo Pd. Singh v Nawal Kishore Yadav (supra), the Ld. Advocate had submitted that it is not open for the plaintiff to impugn the voter list used in the election in the NTR circle because the plaintiff had voluntarily participated in the said election without lodging any protest qua the voter list prior to the election.
Civil Suit No.53/11 :9:13. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had submitted that the judgment of the Hon'ble Supreme Court of India in Shyamdeo Pd. Singh v Nawal Kishore Yadav (supra) and the doctrine of estoppel have no application in this case because the election of the Majority Representative Union of the defendant no.1 is not an ordinary election. The Ld. Advocate had substantiated the submission by stating that the election of the Majority Representative Union of the defendant no. 1 is special because it involves the application of the rule that the "Union which gets 50% of the votes in a Circle, will have right to deal with the matters of purely local interest, such as for instance the handiing of the grievances pertaining to its own members". The Ld. Advocate had further substantiated the submission by stating that on account of the aforesaid rule, it was the duty of the election officer to delete the 32 names from the voter list before declaring the result of the NTR circle.
14. After perusing the record of the Court file and hearing the Ld. Advocates on this issue, I find that in view of the law laid down by the Hon'ble Supreme Court of India in Shyamdeo Pd. Singh v Nawal Kishore Yadav (supra), the plaintiff is debarred from impugning the voter list used in the election of the NTR circle. In my view, the rule laid down in the said judgment that a voter list becomes sacrosanct once it is finalized by a competent person after hearing the concerned parties, squarely applies to the facts and circumstances of the present case. Neither in the plaint nor during final arguments, the plaintiff was able to give any explanation for not raising any dispute regarding the Civil Suit No.53/11 :10: inclusion of twelve duplicate names and the inclusion of nine persons, who were allegedly working outside NTR circle in the voter list, prior to signing of the no objection certificate dated 22.01.2011. In my view, the failure of the plaintiff to point out the discrepancy regarding the aforesaid 21 names, prior to signing of the no objection certificate dated 22.01.2011 or prior to the election dated 1.02.2011, clearly debars the plaintiff from joining issues on the inclusion of the aforesaid 21 names in the voter list, after the election of the NTR circle.
15. In respect of the submission made by the Ld. Advocate that the election of the Majority Representative Union of the defendant no. 1 is a special election, I find that the mere operation of the rule "Union which gets 50% of the votes in a Circle, will have right to deal with the matters of purely local interest, such as for instance the handiing of the grievances pertaining to its own members" does not absolve the election of the Majority Representative Union of the defendant no. 1 from the law laid down in Shyamdeo Pd. Singh v Nawal Kishore Yadav (supra). In my view, the law laid down in the said judgment has solid foundation in as much as it ensures that all participants in an election get a level playing field in the election.
16. Thus, in light of the aforesaid analysis, the issue is decided in favour of the defendants and against the plaintiff. It is held that in view of the certificate dated 22.1.2011, the plaintiff is estopped from challenging the voter list of the NTR Circle for the election of Majority Representative Union of Non-Executive Employees in BSNL.
Civil Suit No.53/11 :11:ISSUE NO.2
17. In support of the case of the defendants on this issue, the Ld. Advocate for the defendants no.1, 2 and 3 had drawn reference to the bye-law B1 (6)(iv) of the Handbook and submitted that it clearly debars the plaintiff from challenging the voter list used in the election in the NTR circle.
18. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had reiterated the submission made in respect of the issue no.1.
19. After perusing the record of the Court file and hearing the Ld. Advocates on this issue, I find it expedient to refer to bye- law B1 (6)(iv) of the Handbook. The said bye-law reads as under:-
"iv. No objection from the unions on revised electoral roll, if already not submitted, to be given within 3 days of issue of final list. In case, no response is received by the due date from any union, it will be presumed that union is not having any objection on the revised finalized electoral roll. These finalised lists will be displayed at prominent places including notice boards."
20. In my view, a literal reading of the aforesaid bye-law makes it clear that the plaintiff is estopped/debarred from challenging the voter list, if it did not do so within 3 days of the issuance of the final list. During arguments, the Ld. Advocate for the plaintiff was asked to point out, if there is any bye-law in the Handbook, which carves out an exception to bye-law B1(6)(iv) of the Handbook. The Ld. Advocate was unable to point out any such Civil Suit No.53/11 :12: bye-law. Thus, I find that in the absence of any exception to bye- law B1 (6)(iv) of the Handbook, the said bye-law clearly debars the plaintiff from challenging the voter list after the election of the NTR circle.
21. Thus, in light of the aforesaid analysis, the issue is decided in favour of the defendants and against the plaintiff. It is held that on account of operation of bye-law B1(6)(iv), the plaintiff is estopped from challenging the voter list of the election in the NTR circle.
ISSUE NO. 322. In view of the findings in the issue no.1 and 2, I find that the plaintiff is not entitled to the declaration, as prayed for in clause (i) of the prayer in the amended plaint filed on 9.8.2011. Further, in order to put a complete quietus to the case of the plaintiff, I find that the plaintiff has not been able to prove that there were 32 voters wrongly mentioned in the voter list used in the election of the NTR circle. During final arguments, the Ld. Advocate for the plaintiff was unable to explain how Sh. Karan Pal Singh, mentioned at sl.no. 15 on page 68 of Annexure P-2 was to be excluded from the voter list on the basis of the letter dated 24.2.2011; how Sh.Mahipal, Sh. Raj Singh, Sh. Ram Niwas, Sh. Puran Singh and Sh. Ramesh Pal were to be excluded from the voter list when they had been mentioned in the voter list because their parent circle was a National Telecom Region (NTR) and how Sh. Khadak Singh, mentioned at sl.no.19 on page 29 of Annexure P-2 was to be excluded from the voter list when there was nothing Civil Suit No.53/11 :13: on record to show that he was posted at Bahadurgarh, Haryana instead of NTR circle.
23. In my view, the failure of the plaintiff to prove the disqualification of the aforesaid persons also dis-entitles the plaintiff from grant of the declaration, as prayed for. Thus, the issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff is not entitled to the declaration, as prayed for.
ISSUE NO.4
24. In view of the findings given on issue no.1, 2 and 3, this issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff is not entitled to the mandatory injunction, as prayed for in clause (ii) of the amended plaint filed on 9.8.2011.
RELIEF
25. In view of the findings on the aforesaid issues, the suit filed by the plaintiff is dismissed. The parties are left to bear their own costs.
26. Before parting with this Judgment, it is clarified that the Ld. Advocate for the plaintiff had submitted that Sh. Ram Swaroop mentioned at sl.no.60 on page 69 was also a disqualified voter. The said submission of the Ld. Advocate has been ignored because it was beyond the pleading made in the plaint. Also, it is Civil Suit No.53/11 :14: clarified that the submission made by the Ld. Advocate that it was a duty of the Election Officer to delete the 32 names from the voter list before declaring the result of the NTR circle, has been ignored because the Election Officer has not been made a party to the present suit by the plaintiff.
After preparation of the decree-sheet by the Reader, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja)
On 07.12.2011 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.53/11