Dismissed

Kerala State Road Transport Corporation Workers Federation v. Kerala State Road Transport Corporation

Kerala HC9 Dec 2020WA/1661/2020

Case brief

AI extract

What is this about?

Writ appeal against an interim order refusing to stay the rejection of the appellants' objections to the final voters' list for a trade union referendum in the KSRTC. The court held that preparation of the electoral roll is part of the election process and courts should not interfere once that process has begun, and declined to disturb the interim order.

What the court decided

AI extract

Kerala State Road Transport Corporation Workers Federation Vs… — Election Law | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942

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WA.No.1661 OF 2020

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AGAINST THE ORDER DATED 03.12.2020 IN WP(C)NO.26691/2020(J) OF HIGH COURT OF KERALA

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APPELLANTS/PETITIONERS:

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1 KERALA STATE ROAD TRANSPORT CORPORATION WORKERS FEDERATION REG.NO.283/71, NANTHANCODE, THIRUVANANTHAPURAM DISTRICT-695 003, REPRESENTED BY ITS PRESIDENT, S.SEETHILAL, AGED 56 YEARS., S/O.SUKUMARAN, RESIDING AT KANDATHIL HOUSE, KAROOR, AMBALAPUZHA P.O., ALAPPUZHA DISTRICT-688 561.

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2 M.DINESH BABU, S/O.SIVARAMAN NAIR, RESIDING AT MULLATH, UPPUKULAM P.O., PALAKKAD DISTRICT-678 601.

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3 J.JAYESH KUMAR, S/O.T.K.JANARDHANA KAIMAL, BHADRAVILASAM, IRAMALLOOR P.O., KUTTILANJI, KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691.

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BY ADVS.SRI.LIJU.V.STEPHEN

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SMT.INDU SUSAN JACOB

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RESPONDENTS/RESPONDENTS:

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1 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.

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2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.

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3 THE REGIONAL JOINT LABOUR COMMISSIONER, CIVIL STATION, KAKKANADU, ERNAKULAM DISTRICT-682 030.

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R1 & R2 BY ADV.SRI.T.P.SAJAN, SC R3 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R”

JUDGMENT

Dated this the 9^th day of December, 2020

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S. Manikumar, CJ

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This intra court appeal is preferred challenging the interim order dated 03.12.2020 in W.P.(C) No.26691 of 2020, by which, a learned Single Judge of this Court declined to grant the interim relief sought for by the appellants.

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Facts leading to the filing of the instant appeal are that the 1^st appellant is a registered trade union representing a substantial number of workmen of Kerala State Road Transport Corporation, respondent No.1. Considering the nature of work in the 1^st respondent Corporation, a large number of workmen had been engaged for a quite long period of time, thereby their chance to get reverted to the employment exchange has been denied and resultantly, the workmen have no other job opportunities to maintain their livelihood. They were continuing in the 1^st respondent as empanelled workers.

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Appellants have further stated that in the meanwhile, a few persons included in the PSC rank list approached this Court to terminate the services of the aforesaid empanelled workers. This Court, as well as the Hon'ble Apex Court, passed a judgment against them reserving the right of the workmen to approach the statutory forums in this regard. Thereafter, the Government of Kerala referred the issue as an industrial dispute (I.D. No.3/2020) under Section 10 of the Industrial Disputes Act, 1947, before the Industrial Tribunal, Thiruvananthapuram, and the same is pending consideration.

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Appellants have further submitted that even though the empanelled workmen were retrenched considering the peculiar nature and exigencies of service in the 1^st respondent Corporation, they are still being engaged by the Corporation till June, 2020 and were paid wages and for the months of July and August, 2020, as well as ex gratia . Thus, the empanelled workmen have been paid wages for the past 240 days.

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Referring to the definition of “workman” under the Industrial Disputes Act, 1947 and the Recognition of Trade Unions Act, 2010, appellants have further stated that the empanelled workmen are entitled to be included in the voters list, as per Section 8 of the Recognition of Trade Unions Act. However, the respondents, in order to promote other major trade unions in the 1^st respondent Corporation, have arbitrarily denied the right of the empanelled workmen to be included in the voters' list. The Regional Joint Labour Commissioner, Ernakulam, respondent No.3, dismissed the objection raised by the appellants, and proceeded to issue the final voters' list.

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Being aggrieved, the appellants have filed the Writ Petition (C) No.26691 of 2020 seeking for the following reliefs:

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a) To call for the records leading to Exhibit-P8 order dated 30.11.2020 of the Regional Joint Labour Commissioner, Ernakulam, respondent No.3, dismissing the objections raised by the appellants, Exhibit-P9 details of the final list of polling stations dated 30.11.2020, and Exhibit-P10 relevant pages of the final voter's list – 2020 of polling station No.1 and 100 issued by the 3^rd respondent.

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b) To set aside Exhibit-P8 order of the 3^rd respondent.

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c) To issue a writ of mandamus or any other appropriate Writ, order or direction, directing the 3^rd respondent to include the members of the 1^st appellant trade union in Exhibit-P10 voter's list and thereby, permit them to cast their vote in the elections to be held on 30.12.2020 or any other date.

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d) To declare that the period of non-availability of the work of the empanelled workmen due to the Covid pandemic situation is to be included in calculating the stipulated period as contemplated under Section 8 of the Kerala Recognition of Trade Unions Act, 2010.

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Pending disposal of the writ petition, the petitioners have sought for staying the operation of Exhibit-P8 order dated 30.11.2020 passed by the 3^rd respondent and Exhibit-P10 relevant pages of the final voter's list-2020.

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After considering the submissions advanced and relying on a decision of the Hon'ble Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors. [(2001) 8 SCC 509], writ court, by the impugned interim order, declined to stay the operation of either Exhibit-P8 order or Exhibit-P10 and thereby interdict the election process. Relevant portion of the order reads thus:

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“I have considered the submissions advanced. The main prayer of the petitioners is for a direction to the 3^rd respondent to include the members of the 1^st petitioner trade union in the final voters list and to permit them to cast their votes. As held by the Hon'ble

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Supreme Court in Shri. Sant Sadguru Janardan Swami v. State of Maharashtra and Ors. [(2001) 8 SCC 509], it was held that the preparation of Electoral roll is a part of the election process and if there is any breach of the rules in preparing the roll, the same can be called in question only after the declaration of the result. Furthermore, it is well settled that after the election process has been set in motion, this Court will not be justified in staying the process even though there may be some alleged breach or illegality of rules concerning the election. I find no reason to stay the operation of either Ext.P8 or Ext.P10 and thereby interdicting the election process.”

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Aggrieved by the said order, appellants have filed this appeal raising

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the following grounds:

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(i). The 1^st appellant is eligible and entitled to represent the workmen in the industrial establishment as per Section 36 of the Industrial Disputes Act, 1947. The empanelled workers had been engaged by the 1^st respondent establishment for the past 8 months in the preceding 12 months period, as contemplated under Section 8 of the Recognition of Trade Unions Act, 2010, and they had been paid their wages. Thus, they come within the purview of the definition of “workman” under Industrial Disputes Act, 1947, and the Recognition of the Trade Unions Act, 2010, and are eligible and entitled to be included in the voter's list.

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(ii). It is further submitted that the Hon'ble Supreme Court and this Hon'ble Court time and again held that the labour laws are beneficial legislation which ought to be interpreted in a liberal manner, so as to protect the rights of the labourers. The learned Single Judge ought not have construed the provision

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of the Act in a narrow and pedantic manner, so as to deny the valuable rights of the workmen.

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(iii). It is further submitted that the empanelled workmen who are engaged in the 1^st respondent, constituted a number of 4410 workmen, who would constitute 14% of the number of the workmen, who are engaged in the Corporation. It is the 1^st appellant trade union, who had been representing the rights of the empanelled workers, engaged in the 1^st respondent establishment. Hence, by the arbitrary act of the 3^rd respondent, if the 1^st appellant trade union has not been able to represent the rights of the empanelled workers and other members engaged by them, the said right of the workmen will be put to substantial prejudice.

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(iv). It is further submitted that the individual workmen are a meager force in any big establishment or corporation who would be unable to fight for their rights against the mighty corporations or establishment. It is envisaging the said situation, the legislative has enacted the laws, promoting formation and recognition of trade unions for collective bargaining of the rights of the workmen. Hence, the respondents ought not have denied the said valuable constitutional right of the 1^st appellant to represent the empanelled workmen in the 1^st respondent establishment.

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(v). It is further submitted that the learned Single judge has mainly refrained from interfering with the issue on the premise that it is an election case. The voter's list and elections contemplated under the Recognition of Trade Unions Act are not akin to an election held under the Representation of People Act, 1950 and the Panchayat and Municipalities Act, wherein the legal provision and fora are constituted for

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agitating the election dispute. Whereas, in an election contemplated under the Recognition of Trade Unions Act, the concept of an election is totally different and cannot be compared with that of an election under the Representation of People Act, 1950 and the Panchayat and Municipalities Act.

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(vi). The learned Single Judge ought not have dismissed the interim prayer sought for by the appellants causing substantial hardship and prejudice to them.

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Based on the above, Mrs. Indu Susan Jacob, learned counsel for the appellants, made submissions. That apart, referring to Sections 8 and 10 of the Kerala Recognition of Trade Unions Act, 2010, learned counsel for the appellants submitted that the members of the appellants' federation are entitled to vote in the election. Referring to Rule 14 of the Kerala Recognition of Trade Unions Rules, 2011, learned counsel for the appellants further submitted that no election shall be invalidated by reason of missing or omission of the name of the workman entitled to vote in the election, in the electoral roll, and, therefore, the appellants are remediless.

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Heard learned counsel for the parties and perused the material available on record.

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Kerala Recognition of Trade Unions Act, 2010, is an Act to provide for the recognition of Trade Unions for facilitating collective bargaining and to check 'multiplicity of Trade Unions in industrial establishments and for matters connected therewith or incidental thereto. Section 8 of the Act deals with eligibility for voting and the same reads thus:

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“8. Eligibility for voting . - All workmen, who are above the age of eighteen years and are in service for a period of one hundred and twenty days in a period of twelve months immediately before the date of announcement of an election to be held for the purpose of section 5 in relation to such industrial establishment or class of industry, as the case may be, shall be eligible for voting, provided any interruption caused by closure, lock-out, strike, lay-off, non-availability of work or leave shall not count towards interruption of service for the purpose of this section.”

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In exercise of the powers conferred by sub-section (1) of Section 17 of the Kerala Recognition of Trade Unions Act, 2010 (16 of 2010), the Government of Kerala have made the Kerala Recognition of Trade Unions

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Rules, 2011.

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Rules 9 to 34 deal with mode of elections, publication of electoral

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roll, date of effect of the results of the election, and are extracted hereunder:

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“ 9. Mode of Election . - If there is more than one applicant Trade Union in respect of an industrial establishment or a class of industry in a local area as provided in sub-section (4) of Section 5, the Registrar shall arrange to conduct an election by secret ballot in the manner hereinafter mentioned in these Rules.

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10. Appointment of Returning Officer . - (1) The Registrar shall appoint or nominate any officer as Returning Officer for the conduct of the election under the Act.

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(2) The services of the staff of the officer appointed as the Returning Officer may be utilised for assisting him in the process of election.

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11. Powers and Functions of the Returning Officer . - (1) Subject to other provisions of these rules, the Returning Officer shall be responsible for the conduct of election of the Trade Union and shall have powers,-

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(a) to fix the date of notification of election;

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(b) to fix and notify the date, place and time of election;

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(c) to prescribe the form of notice, nomination, letter of intimation, declaration paper, ballot paper, ballot paper cover and the envelop

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for election, the form of any other record to be prepared or maintained in relation to an election, the instructions to be contained in the notification etc.;

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(d) to decide in case of doubt, the validity or otherwise of each ballot paper or of each vote recorded thereon;

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(e) to fix-

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(i) the last date of receipt of nominations;

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(ii) the date of scrutiny of nominations and publication of list of Trade Unions validly nominated;

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(iii) the last date and time for withdrawal of candidature;

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(iv) the date of publication of the final list of candidature;

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(v) the date of issue of ballot paper;

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(vi) the date and time of the poll;

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(vii) the date and time of counting of votes; and

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(viii) the date and time for any other purpose in respect of conduct of the election.

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(f) to declare the result of each election; and

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(g) to exercise any other power which he deems necessary for the effective conduct of the election.

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(2) The Returning Officer shall, under unavoidable circumstances postpone the date or dates fixed for election or any process involved in the election at any stage with notice to the parties after recording reasons thereof:

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Provided that if he does so, it shall be informed to the Registrar immediately.

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12. Maintenance of Electoral Roll . - The Returning Officer shall maintain an electoral roll showing the names and address of the workmen of the industrial establishment or a class of industry in a local area as the case may be. The electoral roll shall be made available by the employer of the industrial establishment or a class of industry in a local area as the case may be on request to the Returning Officer.

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13. Publication of the Electoral Roll . - (1) The electoral roll shall be published within seven days from the date of notification of the election. The Registrar shall make arrangements with the employer of the industrial establishment or a class of industry in a local area as the case may be to display the electoral roll in the

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notice board of the respective industrial establishment or a class of industry. The Registrar shall also make arrangements with the employer concerned to supply the copy of the electoral roll to all the registered Trade Unions in the industrial establishment or a class of industry as the case may be immediately after its publication in the notice board.

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(2) The Returning Officer shall also make arrangements for the workmen if any, who are not members of any of the Trade Unions in an industrial establishment or a class of industry as the case may be on request, to inspect the electoral roll maintained in the office of the Returning Officer.

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(3) Any objection to the electoral roll shall be submitted to the Returning Officer within seven days, after the date of publication of the electoral roll and the Returning Officer shall take a decision within 5 days on such objection if any, and arrange the publication of the electoral roll immediately with necessary changes if any, in the notice board of the industrial establishment or the class of industry as the case may be. The decision of the Returning Officer with regard to the electoral roll shall be final.

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14. Election not to be invalidated by reason of missing or omission in electoral roll . - No election shall be invalidated by reason of missing or omission of the name of the workman entitled to vote in such election, in the electoral roll.

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15. Eligibility to take part in election . - Subject to the provisions in section 8 all workmen in the industrial establishment or a class of industry of a local area, as the case may be, and included in the electoral roll, are entitled to take part and vote in the election.

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16. Notification of election . - The notification of election shall contain the following particulars, namely: -

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(a) Date of notification;

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(b) Last date and time for receipt of nominations;

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(d) Last date and time for withdrawal of nominations;

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(e) Date of publication of the final list of candidates;

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(f) Date of issue of ballot papers to the officer in charge of the polling stations;

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(g) Date and time fixed for the poll;

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(h) Date and time of counting of votes.

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17. Presentation of nomination paper and requirements for a valid nomination . - (1) On or before the date appointed for the purpose, each Trade Union may deliver to the Returning Officer a nomination paper in the form as may be specified by the Returning Officer, which shall, on application, be supplied free of cost by the Returning Officer.

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18. Scrutiny of Nominations - (1) All nomination papers received in the office of the Returning Officer, shall be scrutinized by him.

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(2) The Returning Officer shall examine the nomination papers and take decision on the objections which may be made at the time of scrutiny of nomination and he may either on receipt of such objections, or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination, on any of the following ground's, namely:-

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(i) the Trade Union is ineligible for election under the provisions of the Act.

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(ii) the proposer or the seconder is a person whose name is not enrolled in the electoral roll.

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(3) The decision of the Returning Officer, shall, in each case, be recorded on the nomination paper and such decision shall be final.

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19. List of Trade Unions validly nominated .- (1) A list of Trade Unions whose nominations have been declared valid after due scrutiny under rule 18 shall be published with their name and address by affixing -the same on the notice hoard in the office of the Returning Officer on the same day. The names of the Trade Unions in the list shall be in the serial order of their registration numbers or as may be decided by the Returning Officer.

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(2) The Returning Officer shall also make arrangements with the employer of the industrial establishment or the class of industry as the case may be, to publish the list finalised under sub-rule (1) in the notice board of the industrial establishment or the class of industry.

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20. Withdrawal of candidature . - Any Trade Union which is validly nominated, may withdraw its nomination by notice -in writing duly signed by the President or Secretary of the Trade Union and send it to the Returning Officer by registered post or deliver it in person not later than the time on the day fixed for withdrawal. the withdrawal once made shall be final.

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21. Final list of contesting Trade Unions .- The Returning Officer shall, alien expiry of the period fixed for withdrawal of candidature,

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publish a final list of Trade Unions eligible to contest in the election. The final list of Trade Unions shall contain the name, address and, Registration No. granted under the Trade Union; Act, 1926 (Central Act 16 of 1926) in respect of each Trade Union.

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22. Issue of ballot paper .- The officer in charge of the polling station shall issue to each elector a ballot paper containing the name, address and Registration No. of all the Trade Unions in the same order as in the final list of Trade Unions published under Rule 21, when the elector comes to polling station for casting the vote:

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Provided that the ballot paper which does not contain the signature of the officer in charge of the polling station shall be treated as invalid.

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23. Voting . - The elector shall record his vote in accordance with the guidelines issued by the Returning Officer.

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24. Recording of votes of illiterate or disabled elector etc . - If an elector is unable to cast his vote in the manner fixed by the Returning Officer, due to illiteracy, blindness or by reason of any physical or other disability he may cast his vote by the hand of any person duly authorised by him and such person shall sign a declaration as to the incapacity and the fact of his having been requested by the elector to cast his vote on his behalf and the vote shall be marked by him in the presence of the elector.

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25. Closing of ballot box. - The officer in charge of the polling station shall seal the ballot box immediately after the close of the poll.

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26. Procedure of counting. - The scrutiny and counting of vote shall be conducted by the Returning Officer or the officer authorized by him on the date and time fixed for the scrutiny and counting of votes. No person shall be present at the scrutiny and counting except the Returning Officer or the officer authorized, the candidate Trade Union(s) and not more than one representative of each candidate Trade Union appointed by it in writing and approved by the Returning Officer or officer authorised. The ballot box shall be opened by the Returning Officer or the officer authorized by him at the time fixed for counting.

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27. Manner of recording votes . - Every elector shall on receiving the ballot paper, make the mark 'X' or affix the seal as the case may be on the ballot paper against the name of the Trade Union for which he desires to vote and deposit the same in the ballot box.

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28. Ballot paper when rejected . - (1) The ballot paper other than those rejected shall be mixed together and then opened in the

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presence of the Returning Officer. He shall then proceed with the scrutiny of the ballot papers.

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(2) The Returning Officer shall reject the ballot paper as invalid on any one or more of the following reasons, namely:-

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(i) if it does not bear the signature of the officer in charge of the polling station;

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(ii) if the voter signs his name or writes any word or makes any mark by which the identity of the voter becomes recognizable;

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(iii) if the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which Trade Union the vote has been cast; or , -

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(iv) if the voter has voted for more Trade Unions than the number required to be elected.

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(3) On every ballot paper so rejected under sub-rule (2), the Returning Officer shall record the word "Rejected" stating the grounds of rejection and keep such rejected papers in a separate packet.

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29. Recounting . - (1) Any Trade Union or its election agent may, at the time of counting votes, request the Returning Officer to reexamine or recount the ballot papers of all or any of the candidate and the Returning Officer shall forthwith re-examine or recount the same accordingly,

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(2) The Returning Officer may on the request of any candidate and on being satisfied of the necessity, recount the votes,

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30. Declaration of results . - As soon as the counting is over, the Returning Officer shall announce the number of votes secured by each Trade Union and categorize' the Trade Unions as per the provisions of the Act.

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31. Record of election . - The Returning Officer shall prepare a record showing the details of,-

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(a) the number of ballot papers received by the officer in charge of the polling station;

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(b) the number of ballot papers issued;

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(d) the number of ballot papers rejected;

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(e) the number of valid votes;

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(f) the number of invalid votes; and

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(g) the number of votes obtained by each Trade Union.

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32. Election dispute. - Complaints and objections to election shall be made in writing and shall be forwarded to the Registrar along with a fee of rupees two hundred and fifty for considering the objection so as to reach him within seven days after the declaration of the results of the election.

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33. Preservation of election papers . - The nomination papers, ballot papers, declaration papers 'and the ballot paper covers shall be preserved in the office of the Registrar for a period of three years or till the termination of any election disputes whichever is later.

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34. Date of effect of the results of election . - The results of all elections shall be published and such results shall take effect from the date of publication.”

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Exhibit-P1 is the order dated 22.12.2011 issued by the Transport (A)

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Department, Government of Kerala, regularising the provisional employees in the category of Driver, Conductor, Mechanical staff etc., in the Kerala State Road Transport Corporation, who have completed ten years of service as on

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21.12.2011 and the same reads thus:

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“ GOVERNMENT OF KERALA Abstract

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Transport Department – Regularisation of provisional employees in the categories of Driver, conductor, Mechanical staff etc., in Kerala State Road Transport Corporation, who have completed 10 years of service as on 21.12.2011 – sanctioned – Orders issues.

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TRANSPORT (A) DEPARTMENT

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G.O.(Ms) No.78/2011/Tran. Dated, Thiruvananthapuram, 22/12/2011

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Read:- 1) G.O.(P) No.26/09/Tran dated 13.2.2009

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Letter No.P1.12/025739/08 dated 11.11.2011 from the Chairman and Managing Director, Kerala State Road Transport Corporation.

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ORDER

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In the sub-para(5) of Part XI VI of the Government Order read as first paper above related to pay revision agreement of Kerala

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State Road Transport Corporation employees, it was mentioned that proposal would be submitted to Government for regularising provisional employees in the categories of Driver, Conductor, mechanical Staff etc., who were in the panel of Kerala State Road Transport Corporation as on 1.9.2008 and having 8 years of service and performed a minimum of 120 duties in an year. Accordingly, as per the letter read as 2^nd paper above Chairman and Managing Director, Kerala State Road Transport Corporation furnished a list of 1353 conductors, 729 drivers and 392 persons in mechanical section (Total 2474).

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Government have examined the matter in detail and are pleased to accord sanction for regularising the service of those provisional employees in the categories of Driver, Conductor and Mechanical staff in Kerala State Road Transport Corporation, who have completed 10 years of service in KSRTC as on 21.12.2011 subject to the following conditions:

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There will be no retrospective effect to the regularisation of service.

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The provisional service rendered by these employees prior to the regularization will not be counted for any service or pensionary benefits.

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These employees will be eligible for monetary as well as service benefits on account of regularisation only with effect from the date of the Government order.

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The additional expenditure if any consequent to the regularisation of these employees should be met from the Corporation's fund and no financial assistance will be granted from the Government for the purpose.

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Those employees who are continuing in Kerala State Road Transport Corporation as on the date of this order and those who have not attained the age of superannuation, …. will be considered for regularisation as per this order.

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The candidates if any advised by the Kerala Public Service Commission on the date of order of regularisation will be considered senior to those regularised as per this order.

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The chairman & managing director, Kerala State Road Transport Corporation should verify and ensure that the educational as well as other qualifications and date of birth in respect of each of the provisional employees under orders of regularisation and satisfy himself before issuing the formal orders. He should furnish a detailed report thereon within a period of two months.

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The inter-se seniority of the employees regularised as per this order will be determined on the basis of the date of their first joining duty in Kerala State road Transport Corporation on daily wages basis.

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Conductors regularised as per the order will be placed below the conductors regularised from the list of PSC unadvised rank list of 2001.

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The above regularisation will be subject to the outcome of various Writ Petitions pending with Hon'ble High Court in this regard.

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If any one found irregularly placed regularised as per this order, his regularisation will be cancelled forthwith.

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By Order of the Governor Dr. K. Ellangovan, Secretary to Government.”

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Exhibit-P2 notice dated 16.12.2018 issued by the Kerala State

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Road Transport Corporation dispensing with the services of the empanelled Conductors reads thus:

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“ KERALA ROAD TRANSPORT CORPORATION

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Office of the Managing Director Transport Bhavan, Thiruvananthapuram

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No. PL.12/017525/2017 Dated: 16.12.2018

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NOTICE

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Sub:- Dispensing with the service of empaneled Conductors – Compliance of Hon'ble Court direction reg.

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Ref:- Interim Order of the Hon'ble High Court of Kerala dated 06.12.2018 in Writ Appeal No.2248, 2283 & 2289/2018.

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Please take notice that the Hon'ble High Court by interim order dated 06.12.2018 in Writ Appeal Nos.2248, 2283 and 2289/2018 directed the Corporation to immediately dispense with the service of empanelled Conductors to accommodate those who have been advised by the Kerala Public Service Commission except those who had been regularized as per Government Order dated 22.11.2013.

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In compliance with the interim order your service as empanelled Conductor is hereby dispensed with effect from 16.12.2018.

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Sd/Executive Director (Administration) For Chairman & Managing Director”

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Exhibit-P3 is the judgment dated 8.4.2019 in W.A. No.1011 of 2019, wherein it was observed that the empanelled workers are entitled to approach the statutory Tribunal for enforcing their statutory rights. Exhibit-P4 is the order passed by the Hon'ble Supreme Court in SLP(C) No.410/2019 dated 18.01.2019. Exhibit-P5 is the judgment of this Court dated 11.03.2020 in W.A. No.510/2020, whereby the appellants therein were granted liberty to move the appropriate Government under Section 10 of the Industrial Disputes Act for a reference of the dispute.

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Exhibit-P8 order dated 30.11.2020 of the Regional Joint Labour Commissioner, 3^rd respondent, dismissing the objections raised by the appellants reads thus:

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“Rules of Kerala Recognition of Trade Union 2020 and Rules therein 2011, Proceedings of the Returning Officer, Kerala State Road Transport Corporation, Referendum Present Sureshkumar D.

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Sub:- Regarding the final order about the draft voters list complaint hearing.

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Ref:- 1. K.S.R.T.C Workers Federation (Reg. No.283/1971). Complaint of the President dated 17-11-2020.

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Hearing conducted on 25-11-2020.

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Order No.B-1904/2020 dated 30-11-2020

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Ref.(1) complaint mentioned are herein stated. The complaints Union is inclusive of the Kerala Road Transport Corporation Empanelled Employees and representing the registered Trade Union. At present, Kerala State Road Transport Corporation in different employment 4410 employees are the members of the Trade Union. Because of the Covid Pandemic, a number of services of the Kerala State Road Transport Corporation was reduced, hence the members in the Union who require necessary attendance as per the Kerala Recognition of Trade Union Law (8) could not participate in the referendum. Since there was no sufficient number of jobs in this connection, Kerala State Road Transport Corporation could not appoint their members for the job. As per the Kerala Recognition of Trade Unions Act, (8) lock-out, strike, lay-off, non-availability of the work, leave and because of these factors there will not be absence of that cannot be taken as an objection for the service, this was particularly stated therein. Under the above circumstances, the members of the Union on the basis of Sec.8 can must be given permission to participate in the election to be held on 30-12-2020.

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During the hearing in this context explanation was sought for from the management of the Kerala State Road Transport Corporation. In this connection, their explanation is as follows:

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In the referendum notification date 13-11-2020, all employees of the Kerala State Road Transport Corporation Rolls are included in the draft voter list In the complaint stated as per the empanel

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agreement who were doing the work were removed from the service of the Kerala State Road Transport Corporation as per the order of the High Court, in Writ Appeal 2504/17, 2248/18, and 1011/19. In the complaint preferred on 13-11-2020 since those who were not in rolls cannot be included in the voters list as per law.

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In this connection, explanation was sought for from both sides and the returning officer is convinced by the following reasons: It is submitted that empanelled employees are not in the service of the Kerala State Road Transport Corporation at present Further for these employees as per the referendum notification date prior, 12 months they have not attained 120 days service. And further these empaneled employees are removed as per the order in Writ Appeal 2504/17, 2248/18, and 1011/19. This has been Informed by the Management at the time of hearing. That is not denied by the complainant union. Even though employees demand that they have worked in the Kerala State Road Transport Corporation this, being pointed out by the union, but at the time of hearing to prove this matter they have not produced any document or employees name and details by the union.

¶221

As per the 2010 Kerala Recognition of Trade Unions Act, prior to the 12 months referendum notification those who have got 120 days service are entitled for voting right. Empanel employees on referendum notification dated 13-11-2020 are not in the service of the Kerala State Road Transport Corporation. And further 12 months prior to the notification empanel employees are not having 120 days service. Because of the Covid Pandemic members of the union - empanel employees could not get eligibility of fixed attendance which is required for casting vote. Transport Corporation This is not accepted by the Kerala State Road Those who are in the list of Kerala Public Service Commission as per the

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direction of Kerala High Court from the Kerala State Road Transport Corporation service empanel employees are removed.

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Public Service Commission has advised for the post of reserve conductor and in order to give them appointment and for this to terminate the service of the empaneled conductors on 06-12-2018 there was direction by the Division Bench in Writ Appeal Nos. 2248/18, 2283/18 and 2289/2018. Empanel drivers should be terminated and a direction is given by a Division Bench on 08-042019 in Writ Appeal 1011/2019. Empanel painters should also be terminated on or before 30-06-2019 as per the direction contained in Writ Appeal No. 2504/2017 dated 11-06-2019. On the basis of these orders of the Kerala High Court, Kerala State Road Transport Corporation has terminated the service of the empanelled employees. Those, who are not in the empanelled employees, and not included in the voters list, and members of the union, their clear details are not furnished by the complainant union. Hence, the complaint submitted by the union is not sustainable. Because as per 2010 Kerala Recognition of Trade Unions Act Se.8 for required eligibility for the voting right is not obtained by the empanel employees, hence as per law and the right vested in the returning officer, union's request to enlist in the voters list is hereby dismissed and hence this order.

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30^th day of November, 2020

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Sd/Returning Officer/ Regional Joint Labour Commissioner Ernakulam”

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Reading of the above shows that the Kerala State Road Transport

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Corporation has contended that pursuant to the judgment of this Court in W.A. No.1019 of 2019 dated 8.4.2019, Corporation has terminated the services of

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the empanelled employees. Corporation has further contended that as per the Kerala Recognition of Trade Unions Act, 2010, prior to 12 months referendum notification, those who got 120 days service, are entitled for voting right. Empanelled employees, on referendum notification dated 13.11.2020, are not in the service of Kerala State Road Transport Corporation and further, 12 months prior to the notification, empanelled employees are not having 120 days' service. Considering the rival submissions, the Regional Joint Labour Commissioner, Ernakulam, respondent No.2, has dismissed the request of the appellants. The above decision is on facts.

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Exhibit-P9 is the details of the final lists of polling stations (Units) dated 30.11.2020 issued by the 3^rd respondent and Exhibit-P10 is the relevant pages of the final voter's list-2020 of polling station No.1 and 100 issued by the 3^rd respondent.

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G.O.(Rt) No.992/2020/LBR dated 01.10.2020 issued by the Additional chief Secretary, Labour and Skills (A) Department, Government of Kerala, is extracted hereunder:

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“GOVERNMENT OF KERALA Abstract

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Labour and Skills Department – Industrial dispute between the management of Kerala Road Transport Corporation and empanelled workers in the Kerala State Road Transport Corporation – Referred for adjudication – judgment dated 15.6.2020 in WP(C) 11711/2020 – complied with – Orders issued.

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-------------------------------------------------------------------------------------------LABOUR AND SKILLS (A) DEPARTMENT

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G.O(Rt) No.992/2020/LBR Dated, Thiruvananthapuram, 01/10/2020 --------------------------------------------------------------------------------------------

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Read:- 1. Judgment dated 15.06.2020 in W.P.(C) No.11711/2020 filed by KSRTC Workers Federation.

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Representation dated 17.06.2020 from S. Seethilal, President, KSRTC Workers Federation.

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Letter No. I.R.(4) 18271/2018 dated 28/09/2020 from the Labour Commissioner.

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The Hon'ble High Court as per judgment dated 15.6.2020 in WPC) 11711/2020, directed the 2^nd respondent viz Secretary Labour Department, Govt. of Kerala, to take a decision on Ext.P9 representation dated 19.03.2020 if received in the office and if otherwise the petitioner to file another copy, in accordance with law by affording an opportunity of hearing to the representative of the petitioner and take a call within a period of three months thereafter. Accordingly the petitioners submitted Ext.P9 representation. Judgment of Hon'ble High Court was received from the petitioner on 30.06.2020.

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The request in the Ext.P9 representation is to refer the dispute raised by the petitioners on behalf of the workers to Labour Court Industrial Tribunal. In compliance of the direction of the Hon'ble High Court in judgment dated 15.6 2020 in WP(C) 11711/2020, soon on receipt of Ext.P9 representation, Labour Commissioner was asked to furnish a report regarding the compliance of the Judgement. Further procedures regarding the compliance of judgement could not be completed in time due to various reasons such as restrictions and lock down due to COVID pandemic.

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A hearing as ordered by the Hon'ble Court was conducted by the Government on 08.09.2020. Representatives of petitioners and Labour Commissioner were attended. Labour Commissioner informed that in the meeting conducted by him, only the representative of the Federation participated. In the hearing held on 8.9 2020 the Labour Commissioner had been directed to conduct a conciliation meeting with both the parties and directed to furnish the reconciliation report within a week which is a requisite for referring the case for adjudication as per the Industrial Disputes Act of 1947 Labour Commissioner submitted the reconciliation report as per reference 3^rd cited.

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Govt. have examined case in detail and found that as per the report submitted vide reference 3^rd above, the industrial dispute existed between the Chairman and Managing Director, Transport Bhavan, fort, Thiruvananthapuram, and the workers of the above referred establishment represented by President, KSRTC Workers

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Federation is liable for adjudication to the Industrial Tribunal, Thiruvananthapuram. Ext.P9 representation submitted by the President, KSRTC Workers Federation, is disposed of accordingly.

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Now, therefore, in exercise of the powers conferred by Section 10(1)(d) of the Industrial Disputes Act of 1947 (Central Act XIV of 1947) the Government hereby direct that the said industrial dispute between the Chairman and Managing Director, Transport Bhavan, fort, Thiruvananthapuram and the workers of the above referred establishment represented by President, KSRTC Workers Federation, Regi.No.71/283, Nanthancode P.O., Thiruvananthapuram be referred for adjudication to the Industrial Tribunal, Thiruvananthapuram. The Industrial Tribunal will pass the award within a period of three months.

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Accordingly the judgment dated 15.6.2020 in WP(C) 11711/2020, The Hon'ble High Court is complied with.

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(By order of the Governor) SATYAJEET RAJAN ADDITIONAL CHIEF SECRETARY”

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Going through the impugned order, it is discernible that, while considering as to whether the interim relief sought for can be granted or not, writ court, after taking note of the decision of the Hon'ble Apex Court in Shri Sant Sadguru Janardan Swami (cited supra), which held that the preparation of electoral roll is a part of the election process and if there is any breach of the rules in preparing the roll, the same can be called in question only after declaration of the results, and following the principles of law that once the election process has been set in motion, the Court will not be justified in staying the elections, declined to grant an interim stay.

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Though Mrs. Indu Susan Jacob, learned counsel for the appellants, argued on the merits of the case, when the writ petition is pending consideration before a learned single Judge, it would not be appropriate for

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the appellate court to deal with the same. Thus, we confine only to the correctness of the interim order.

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On the contention that the writ court ought not to have placed reliance on the decision in Shri Sant Sadguru Janardan Swami v. State of Maharashtra and Ors. [(2001) 8 SCC 509], decided with reference to the provisions of the Representation of the People Act, 1951 and in the context of the instant case, ought to have considered Rule 14 of the Kerala Recognition of Trade Unions Rules, 2011, we are not inclined to accept the said submission for the reason that the abovesaid decision does not relate to the Representation of the People Act, 1951. It relates to elections under the Maharashtra Cooperative Societies Act, 1960. After referring to the statutory provisions, at paragraph 7, the Hon'ble Supreme Court held thus:

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“7. In the light of the aforestated provisions of Chapter XI-A of the Act and the Rules, we will examine as to whether preparation of electoral rolls is an intermediate stage in the process of election. The provisions referred to above show that Chapter XI-A was enacted and the Rules were framed specially to deal with the election of the specified societies under Section 73-G of the Act. Section 144-X provides that various stages of election shall also include preparation of the list of voters. Once the statute provides that the preparation of the voters’ list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of the election of a specified society. This matter can be examined from another angle. A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters’ list,

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decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and the Rules, the preparation of voters’ list must be held to be part of the election process for constituting the Managing Committee of a specified society. In Someshwar Sahakari Sakhar Karkhana Ltd. v. Shriniwas Patil, Collector [ 1992 Maharashtra Law Journal 883] . it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the Managing Committee of a specified society is an intermediate stage in the process of the election. Similar view was taken in Shivnarayan Amarchand Paliwal v. Vasantrao Vithalrao Gurjar [1992 (2) (vol 30) Maharashtra Law Journal, 1052] . However, in Karbhari Maruti Agawan v. State of Maharashtra [1994 (2) Maharashtra Law Journal, 1527], although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court from entertaining a petition under Article 226 of the Constitution challenging the validity of the electoral roll, It appears that the consistent view of the Bombay High Court on the interpretation of Chapter XI-A of the Act and the Rules framed thereunder is that the preparation of electoral roll is an intermediate stage of the election process of the specified societies. This being the consistent view of the High Court on the interpretation of provisions of a State Act, the same is not required to be disturbed unless it is shown that such a view of the High Court is palpably wrong or ceased to be good law in view of amendment in the Act or any subsequent declaration of law. We are, therefore, of the view that the preparation of the electoral roll for election of the specified society under Chapter XI-A and the Rules framed thereunder, is an intermediate stage in the process of election for constituting the Managing Committee of a specified society.”

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25. In Shaji K. Joseph v. V. Viswanath and Ors . [(2016) 4 SCC 429],

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the issue involved is with regard to election of a Member to the Dental Council of India under Section 3(a) of the Dentists Act, 1948 and Dental Council (Election) Regulations, 1952. Respondent No.1 therein wanted to contest in the election, but as his name was not in the electoral roll, in Part A of the register of dentists for the State, his nomination form had not been accepted

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by the Returning Officer, respondent No.3 therein. In such circumstances, respondent No.1 therein preferred Writ Petition (C) No.4075 of 2011 before this court challenging the validity of rejection of his nomination paper.

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A learned Single Judge of this Court vide judgment dated 23.05.2011 allowed the said Writ Petition, by setting aside the order passed by the Returning Officer, rejecting nomination in respect of the candidature of respondent No.1 therein, and directed the Returning Officer to conduct the election afresh, after including the name of respondent No.1, and to declare the result on the basis of such election to be conducted afresh from the stage after submission of the nominations.

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Being aggrieved by the aforestated judgment delivered in the writ petition, the appellant therein preferred Writ Appeal No.806 of 2011 assailing the validity and correctness of the judgment rendered by the learned Single Judge of the High Court. A Hon'ble Division Bench of this Court dismissed the Writ Appeal by judgment dated 18.07.2011 and, therefore, the appellant has approached the Hon'ble Apex Court, by way of appeal.

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After considering the statutory provisions of the Dentist Act, 1948, as well as the Dental Council (Election) Regulations, 1952, and rival submissions, in Shaji K. Joseph 's case (cited supra), the Hon'ble Apex Court, at paragraphs 15 to 17, held thus:

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“15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of

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election had started upon publication of the election program on 27^th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent 1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent 1 for contesting the election is concerned, though prima facie it appears that Respondent 1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court’s order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having an election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.

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This Court, in N.P.Ponnuswami v. Returning Officer (AIR 1952 SC 64) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra).

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Thus, in view of the aforestated settled legal position, the High Court should not have interfered with the process of election. We, therefore, set aside the impugned judgment and direct that the result of the election should be published. We are sure that due to interim relief granted by this Court, Respondent 1 must not have been permitted to contest the election. It would be open to Respondent 1 to approach the Central Government for referring the dispute, if he thinks it proper to do so. No issue with regard to limitation will be raised if Respondent 1 initiates an action under Section 5 of the Act within four weeks from today.”

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Thus, in Shri Sant Sadguru Janardan Swami 's case (cited supra) and in Shaji K. Joseph 's case (cited supra), which do not relate to any elections under the Representation of the People Act, 1951, the Hon'ble Apex Court held that once the process of election has started, the same should be interdicted. In the same way, a Hon'ble Division Bench of this Court in Returning Officer/ Additional Secretary, Office of the Returning Officer, Directorate of Ayurveda Medical Education v. Dr. Pragalbh M.R., and Others [2017 SCC Online Ker 20893], dealing with a matter of rejection of nomination of a candidate to the Central Council of Indian Medicine, following the decision in Shaji K. Joseph 's case (cited supra), held thus:

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“4. Having considered the submissions made, we are inclined to agree with the learned Government Pleader. As we have already seen, the cause of action, which led the first respondent to file writ petition is the rejection of his nomination. Submission of nomination, its scrutiny and rejection are processes after commencement of election process upon issuance of the notification as evidenced by

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Ext.P2. The law is trite that once election process has commenced, the Courts should not entertain challenges against such process and thereby stall the election process. This is all the more so, when the statute itself provides for alternative remedies to the aggrieved, which in this case is the remedy provided under Section 4(2) of the Indian Medical Council Act. In this context, we may refer to the judgment of the Apex Court in Shaji K. Joseph v. V. Viswanath [2016 (2) KHC 33 (SC)], which arose out of the rejection of a nomination filed by a candidate in an election to the Dental Council of India. In that case, the writ petition was allowed by this Court and the judgment was confirmed in appeal also. However, the appeal filed before the Apex Court against that judgment was allowed and one of the reasons assigned by the Apex Court reads as under:

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“14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27^th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent No. 1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of respondent no. 1 for contesting the election is concerned, though prima facie it appears that respondent no. 1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally Courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the Courts, possibly no election would be completed without Court's order. Very often, for frivolous reasons candidates or others approach the Courts and by virtue of interim orders passed by Courts, the election is delayed or cancelled and in such a case the basic purpose of having an election and getting an elected body to run the administration is frustrated. For the

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aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.

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This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the Courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra)”

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Therefore, in the light of the law thus laid down, we are unable to sustain the judgment of learned Single Judge. Accordingly, this appeal is allowed. The judgment of the learned Single judge is set aside making it clear that it would be open to the first respondent to take recourse to the remedy under Section 4(2) of the Indian Medical Council Act and the rules governing the same. Needless to say that any such reference made under Section 4(2) shall be disposed of on an expeditious basis.”

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Thus, the Hon'ble Apex Court, as well as this Court, have consistently applied the principles of law that once the election process has commenced, there should not be any interference. At this juncture, it would be inappropriate to address the merits of the case, as regards exclusion of the members of appellants' federation.

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On the aspect of reference to Rule 14 of the Kerala Recognition of Trade Unions Rules, 2011, that the appellant is remediless, we are of the view that it is for the writ court to address. However, we may only observe that if the statutory provisions do not provide for any remedy, jurisdiction of the Civil Court is not ousted. We make it clear that it is only an observation.

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In the light of the above discussion and decisions, we do not find any error in the impugned interim order dated 03.12.2020, warranting interference in appeal. Accordingly, this Writ Appeal is dismissed.

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Sd/- S. MANIKUMAR CHIEF JUSTICE

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Sd/-

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SHAJI P. CHALY JUDGE

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Krj

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//TRUE COPY//

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P.A. TO C.J.