The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 5261 OF 2025 NALCO Mazdoor Sangha, NALCO …. Petitioner Mr. Sukanta Kumar Dalai, Advocate Union of India and others …. Opp. Parties -versus-
Legal Reasoning
Mr. Alok Kumar Mohanty, Senior Panel Counsel (For Union of India) Mr. Avijit Pattnaik, Advocate (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA & JUSTICE S.K. MISHRA Order No.
Decision
ORDER 04.03.2025 4. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the order dated 14th February, 2025 as well as the schedule of election issued by the Deputy Chief Labour Commissioner (Central), Bhubaneswar and Returning Officer on 14th February, 2025 as at Annexures-2 and 3 respectively with regard to verification of the membership of Alumina Refinery of M/s. NALCO Ltd., Damanjodi, Koraput. 3. Pursuant to the direction of this Court dated 28th February, 2025, additional counter affidavit has been filed by Deputy Chief Labour Commissioner (Central), Bhubaneswar- Opposite Party No.2 in Court, which is taken on record. In the said counter affidavit, the Deputy Chief Labour Commissioner (Central), Bhubaneswar has justified the publication of the voters’ list after the date of filing of the nomination and Page 1 of 6 allotment of symbol. A plea has been taken therein that the schedule of election is fixed on the request of majority of the Unions and the Management, which is reproduced hereunder: “7. That, there are no specific statutory provisions with regard to conducting the election process in a particular sequence, but on request of the majority of the Unions and Management, the schedule of election has been declared.” 4. It is pointed out by Mr. Dalai, learned counsel for the Petitioner that at paragraph-14 of the counter affidavit filed by the Deputy Chief Labour Commissioner (Central), Bhubaneswar, it has been stated as under: “14. That the verification of membership of Trade Unions for the purpose of ‘recognition’ continues to be done under the Code of Discipline which was adopted at the 16th session of Indian Labour Conference held in May 1958. The code of discipline is a set of guidelines mutually and voluntarily accepted by the parties to maintain discipline in industry both in public and private sectors. Through the Code of Discipline does not provide the verification through secret ballot, over a period of time, verification through secret ballot has evolved to become an important method of verification. The Chief Labour Commissioner (Central) had formulated detailed guidelines on conducting such verification vide letter dated 18.12.1980 as Executive Instructions.” From the statements made in the additional counter affidavit, this Court finds that the Deputy Chief Labour Commissioner (Central), Bhubaneswar and Returning Officer has given much importance to the suggestion of the majority Unions and Management together with Executive Instructions issued on 18th December, 1980, but, it has not taken into consideration the Page 2 of 6 procedure provided under the Code of Discipline as well as the ratio decided in the case of Food Corporation of India Staff Union –v- Food Corporation of India and others, reported in 1995 SCC (Supp.)1 678. The representation of the Petitioner also appears to have been dealt with in a cryptic manner without taking into consideration the Code of Discipline as well as the ratio decided in the case of Food Corporation of India Staff Union (supra). The guidelines formulated in Food Corporation of India Staff Union (supra) are reproduced hereunder for ready reference: “4. We have perused the aforesaid documents. We direct that the following norms and procedure shall be following for assessing the representative character of trade unions by the "secret ballot system": (i) As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC). (ii) The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour. (iii) The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer. (iv) The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/works (category III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the PCI as on the date indicated by the CLC. The list shall be prepared in the perform prescribed by the CLC. The said list shall constitute the voters list. (v) The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof the each of the union for raising objections, if any. The unions will file the objections to the Returning officer within the stipulated period and the decision of the Returning Officer shall be final. (vi) The FCI shall make necessary arrangement to: Page 3 of 6 (a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice board and also at other conspicuous places for the information of all the workers; (b) print requisite number of ballot papers in the proforma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions ; (c) the ballot papers would be prepared in the proforma prescribed by the CLC in Hindi/English and the concerned regional language; (d) set up requisite number of polling stations and booths near the premises where the workers normally work; and (e) provide ballot boxes with requisite stationery, boards, sealing wax etc. (vii) The Returning officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI. (viii) The election schedule indicating the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results, shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one month's time shall be allowed to the contesting unions for canvassing before the nominations. (ix) To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination. (x) The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer. (xi) At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters' list and advise him thereafter to procure the secret ballot paper from the Presiding Officer. the date of filing Page 4 of 6 to (xii) The Presiding Officer will hand over the ballot the workman/employee concerned after paper affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera.” 5. Mr. Mohanty, learned Senior Panel Counsel appearing for the Union of India as well as Mr. Pattnaik, learned counsel appearing for NALCO submit that schedule of election has been fixed as per the rules and guidelines. There is no infirmity with the same. In pursuance of the said schedule of election, the Petitioner-Union has already filed nomination paper and it has been held to be valid along with two other Unions. Thus, they prayed that the writ petition should not be entertained. 6. As discussed above, this Court finds that while considering the representation of the Petitioner-Union vide order under Annexure-1, the Deputy Chief Labour Commissioner (Central), Bhubaneswar and Returning Officer did not, at all, take into consideration the Code of Discipline for verification of the Membership of the Unions as well as the guidelines fixed by the Hon’ble Supreme Court in Food Corporation of India Staff Union (supra). 7. In that view of the matter, this Court sets aside the date of election scheduled to be held on 11th March, 2025 and directs the Deputy Chief Labour Commissioner (Central), Bhubaneswar and Returning Officer-Opposite Party No.2 to consider the representation of the Petitioner-Union afresh keeping in mind the Code of Discipline as well as the guidelines formulated by Page 5 of 6 the Hon’ble Supreme Court in the case of Food Corporation of India Staff Union (supra). The Opposite Party No.2 shall act upon production of certified copy of this order, which is undertaken to be produced within a period of three days hence. 8. With the aforesaid observation and direction, the writ petition is disposed of. 9. Interim order dated 20th February, 2025 passed in I.A. No.3001 of 2025 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge (S.K. Mishra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Mar-2025 17:58:10 Page 6 of 6