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10. The learned counsel for 3rd respondent refuted the said contentions and contended that the Writ Petition itself is not maintainable because the impugned order has been passed by the 2nd respondent in the process of conducting secret ballot to determine which of the Trade Unions is the majority Trade union of 3rd respondent; that these elections are being conducted pursuant to the Code of Discipline; that while acting pursuant to the Code of Discipline to determine which of the 2 Trade Unions is a majority union of 3rd respondent industry, the 2nd respondent is not discharging any statutory duty or public duty; therefore no writ of mandamus can lie and Code of Discipline itself cannot be enforced under Article 226 of the Constitution of India.

11. I have noted the submissions of both sides.

12. The historical background of Code of Discipline, its contents has been succinctly set out in a decision of this Court in Management of APSRTC, Hyderabad Vs. Workmen of the APSRTC, Hyderabad and another :

14. The Code of Discipline, which was ratified by the Central Employees and Workers Organization at the 16th Session of the Indian Labour Conference held at Nainital in May, 1958, came into force from 1.6.1958. Part V of the Code of Discipline relates to Implementation and Evaluation Machinery and its functions and procedures, wherein the rights arising out of recognition of Unions are found. Under para-13 thereof, it was agreed that the Unions, granted recognition under the Code of Discipline, would enjoy the right to raise issues and enter into collective agreements with the employers on general questions concerning the terms of employment and conditions of service of workers in an establishment.

13. In HMT Employees Union v. HMT , Justice Chinnappa Reddi, as he then was, rejected the contention of the petitioner Trade union therein that the Code of Discipline should be enforced, observing:

I am unable to see how this Court exercising jurisdiction under Article 226 of the Constitution can quash a decision of the State Evaluation and Implementation Committee constituted in pursuance of the Code of Discipline which has no statutory basis but is a voluntary agreement between management and workers .. I do not think it is competent for me to interpret the clauses of the Code of Discipline and to give any direction concerning the recognition of rival Trade Unions. The application under Article 226 is misconceived and it is therefore dismissed. ..

36. Admittedly, the earlier decisions in HMT Employees Union (7 supra) and All India Reserve Bank Employees Federation (8 supra) were not brought to the notice of this Court when it rendered Indian Leaf Spring Kamgar Union (4 supra), Panyam Cements Employees Union (5 supra) and I Srinivasa Rao (3 supra). Therefore, the latter judgments are clearly per incuriam and cannot be said to be binding.

37. For the above reasons, I am of the opinion that since the order dt.08.10.2014 was passed by the 2nd respondent in his capacity as a returning Officer for the conduct of secret ballot election to determine the majority Trade Union in the 3rd respondent-Industry under the Code of Discipline is as per the Procedure for Verification of Membership of Unions for the purpose of recognition under the Code of Discipline, and since the Code of Discipline is non-statutory, a Writ Petition questioning the same is not maintainable. It is open to the aggrieved parties to approach a Civil Court challenging the same.