1. By way of the instant appeal, the appellant assails the order dated 29th May, 2018 passed by the learned Single Judge, disposing of OWP No.927/2018 and MP No.01/2018 entitled Mukhtar Ahmad Bhat & Ors. v. Sub Divisional Magistrate & Ors.
2. It appears that Mukhtar Ahmad Bhat along with nine other persons claimed to be medical representatives and members of the Kashmir Medical Representatives Association registered under the Trade Union Act, 1926. These persons had filed the writ petition being OWP No.927/2018 contending that LPAOW No.45/2018 Page 2 of 7 elections were last conducted in 2013 and not thereafter despite requests and representations in this regard and that the tenure of the last elected executive body expired in 2015. Alleging mis-appropriation of funds, the writ petitioners complained that respondent no.3 had not taken any action viz-a-viz audit of funds and also a grievance was made that the present appellants (respondents in the writ petition) had shifted the registered office of the Trade Union to a place of their choice in violation of Section 12 of the Trade Unions Act, 1926. On the basis of these averments, the following prayer was made in the writ petition: - Writ of mandamus thus commanding upon the official respondents to discharge the statutory duty viz the grievance of the petitioners.
3. The writ petition came up for hearing on 29th May, 2018, when it was represented before the court that the Assistant Labour Commissioner, Srinagar, (respondent no.2 therein and respondent no.12 before us) had failed to discharge statutory duties with regard to the said Association despite the expiry of its tenure has expired in 2015. The learned Single Judge noted the submission of Mr M. A. Wani, Sr AAG, to the effect that suitable action shall be taken in accordance with law. In view of this submission of the learned Sr AAG and the facts placed before the court, by an order dated 29th May, 2018 the writ petition was disposed of with the direction to the Assistant Labour Commissioner to initiate the process of holding elections to the Kashmir Medical Representatives Association within a period of 15 days from the date of receipt of certified copy of the order and to conclude the same preferably within three months from the date of the order.
4. The present appeal has been filed by the appellants complaining that the learned Single Judge has erred in ignoring two material facts; the first being that the Kashmir Medical Representatives Association (Association hereafter) has LPAOW No.45/2018 Page 3 of 7 filed a civil suit for declaration, permanent injunction before the court of Principal District Judge, Srinagar. Copy of the plaint has been placed before us as L-3 (pages-40 to 46). The suit has been filed against four private persons including Muzaffar Gul, Mohammad Rafiq Farooq, Amir Ahmad Matoo, Mohammad Syeed Khan (respondents 7 to 10 respectively before us) as well as the Sub District Magistrate, Srinagar, and the Assistant Labour Commissioner, Srinagar. The dispute which is the subject matter of the civil suit is a complaint of the Association that these respondents 7 to 10 were not permitting the Association to run its affairs smoothly, raising unnecessary disputes under the influence of some private pharmaceutical companies and were creating problems after having failed to gain over the control of the Association in a democratic way. Based on the said averments, the Association has prayed for the following decrees in their favour:-
I. Declaratory Decree, declaring the interference of the Defendant No.5 taken in furtherance to Annexure (F) of the plaint as illegal, without any authority of the law besides being null and void further the interference of the defendant No.5 in the affairs of the association as illegal and without authority of the law and pass a decree thereon.
II. Mandatory Permanent Injunction, commanding the defendants No. 1-4 not to resort to the violence, arrogance against office bearers, Executive body members, general members of the present KMRA (Plaintiff) and pass a decree thereon.
III. Mandatory Prohibitory Injunction, prohibiting the defendant No.5 from issuing any direction or communication against the interests of the plaintiff association and its aims and objects and LPAOW No.45/2018 Page 4 of 7 against interests of the members for whose benefits the association is working and pass decree.
IV. Mandatory Injunction, commanding the concerned state police authority and other law implementing agencies to proceed against the defendants 1-4 for creating law and order problem, destruction property and for doing the act to the determent of the plaintiff and its respectable office bearers, members of the executive body and the general category members and pass decree thereon.
5. It is to be noted that, as per the copy of the plaint filed along with the memo of appeal, the suit has been filed on 16th April, 2018 i.e., long after the tenure of the executive committee of the Association has expired.
6. It is also to be noted that there is no dispute with regard to the membership of the private respondent nos. 7 to 10 of the Association in the suit nor any issue relating to conduct of elections to the executive committee of the Association. So far as the adjudication of the disputes pressed by the Association in the civil suit are concerned they relate to the conduct of the private respondents and seek interdiction of their meddling in its affairs. In view thereof, the submission of Mr Thakur, learned counsel for the appellants, that the outcome/ adjudication of the civil suit would have a bearing on the elections to the executive committee of the Association is clearly mis-conceived and devoid of any merit.
7. The second point urged before us is that Assistant Labour Commissioner has no role at all to play in the conduct of the elections. Mr Thakur learned counsel for the appellant has in this regard placed the Constitution of the Kashmir Medical Representatives Association before us. LPAOW No.45/2018 Page 5 of 7
8. We find that the Constitution of the Kashmir Medical Representatives Association defines membership in clause-II. The office bearers and the executive committee stand defined in Clause-IV. As per Clause-V, it has been mandated that general body meeting of the Association will elect the Chairman, President, General Secretary and at least four members will be from the ordinary members.
9. So far as the role of the statutory authorities is concerned, Mr Thakur, learned counsel for the appellants, has drawn our attention to Clause-X of the constitution which provides as follows: -
X. Cognizance of offences: The Registrar Trade Unions J&K shall take action under law against the Union Association for not carrying out the provisions of Trade Unions Act, misuse of funds and for not conducting the election of the Union Act, misuse of funds fraud and not for conducting the election of the union within extended period of 06 months. The registrar shall take action against the (Emphasis by us)
10. A bare reading of the above would show that as per the Constitution, the only role assigned to the Registrar Trade Unions J&K is to take action under law against the Union Association for not carrying out the provisions of the Trade Union Act. We may note that not conducting the elections of the Union is recognized as an offence not only in the Trade Unions Act but also in the above Constitution of the Kashmir Medical Representatives Association.
11. It is undisputed before us that the tenure of the erstwhile executive committee expired in the year 2015 and no elections to the executive committee have been conducted since then. LPAOW No.45/2018 Page 6 of 7
12. So far as the grievance of the appellants that the learned Single Judge has erroneously accepted the submission of the petitioners that the Assistant Labour Commissioner, Srinagar, had to discharge statutory duties with regard to the election to the Executive Committee of the Association is concerned, it is submitted by Mr Thakur that the appellants would have no objections if the Registrar Trade Union, Srinagar, respondent no.13 before us, was appointed as an Observer for the elections. A further submission is made by learned counsel for the appellant that the Registrar Trade Union, Srinagar, be directed to verify the validity of the membership and the electoral rolls of persons who would be permitted to participate in the general body and the elections to be conducted therein.
13. Learned counsels representing all the respondents submit that they also have no objection if instead of Assistant Labour Commissioner, Srinagar, appointed by the impugned order, the Registrar Trade Union, Srinagar, is appointed as an Observer to the general body and elections of the Association. It is further submitted that the Registrar Trade Union, Srinagar, should be also enabled to verify the membership rolls and validity of the eligible members of the Association who would participate in the election process.
14. Keeping in view the above, with the consent of the parties, the order dated 29th May, 2018, passed by the learned Single Judge is modified and the following directions issued;
(i) The Registrar Trade Union, Srinagar, is appointed as an Observer for conduct of elections to the executive body of the Kashmir Medical Representatives Association.
(ii) The Registrar Trade Union shall carry out the exercise of verification of the membership to the Kashmir Medical Representatives Association LPAOW No.45/2018 Page 7 of 7 within a period of one month from today. The appellants shall ensure that all necessary records are made available to the Observer appointed by this Court forthwith to undertake such exercise.
(iii) It is further directed that in case there is any objection to membership of any person or body, the Observer shall give a notice in writing to such person and give him an opportunity of making representation to establish the validity of his membership.
(iv) The Association shall ensure that elections are conducted within a period of one month after the finalization of the membership and the electoral rolls list by the Observer.
(v) The entire process of the elections shall be conducted in the presence of the Registrar Trade Union, Srinagar, and positively completed within a period of three months in all from the date of this order.
(vi) It is made clear that there is no expression of opinion on the merits of the disputes which are pending before the civil court.
15. This appeal is disposed of in the above terms. However, it is made clear that there is no expression of merits on the disputes which is pending before the civil court. (DHIRAJ SINGH THAKUR) (GITA MITTAL) JUDGE CHIEF JUSTICE Srinagar 11.09.2018 Abdul Qayoom, PS