Akhil Bhartiya Employees Provident Fund Staff Federation vs Union of India and Others

Gita Mittal, J.—This writ petition raises certain fundamental questions relating to the recognition of trade unions, their entitlement to claim membership verification by a particular process and maintainability of a writ petition at the instance of one trade union against the Management pleading illegality in membership verification and the consequential withdrawal of a provisional recognition given to it. The Constitution of India under Article 19(1)(c) recognizes the rights of the citizens to form a trade union/association. The Trade Union Act, 1926 governs and recognizes the right of registration of a trade union. The trade union embodies the collective bargaining powers of the workmen of an industry. In organisations having only one registered trade union, there is no difficulty as to the trade union which shall represent the will and aspirations of the entire work force of the organisation. However, a difficulty has been arisen in organisations where there is more than one trade union. This is more so in the case of national level organizations as banks etc.

In the instant writ petition, two trade unions, the petitioner and the respondent no. 4 of the Employees Provident Fund Organization (hereinafter referred to as the ''EPFO''), are at logger heads over the provisional recognition granted by the respondent no. 2 to the petitioner.

The petitioner, the Akhil Bhartiya Employees Provident Fund Staff Federation, was established in the year 2002 and claims to be a federation of the staff of the Employees Provident Fund Organization. By a letter dated 30th June, 2002, the Executive President of the petitioner informed the Chairman of the Central Board of Trustees of the Employees Provident Fund Organization of its constitution and particulars of the members of its Executive Committee. Shri M.V. Mukandan was appointed its Secretary General, who has filed the present writ petition as well.

The petitioner wrote a further letter dated 24th December, 2002 to the Central Provident Fund Commissioner informing that recognized unions of Tamilnadu, Kerala, Gujarat, New Delhi - R.O., West Bengal and Uttaranchal were affiliated to its federation and that it has a total membership of more than 35% of the total strength of the Employees Provident Fund Organization. The petitioner by this communication sought recognition status from the organization.

It appears that a prior representation in this behalf had been submitted to the then Labour Minister on 7th October, 2002 asserting that the Government of India in its order dated 3rd July, 2002 and 23rd September, 2002 had declared that recognition can be granted if the membership of the affiliated unions/associations taken together constitutes a minimum of 15% of the entire work force of the concerned organization. The petitioner, therefore, contended that it was entitled to be granted recognition.

This letter was followed by a communication dated 10th February, 2003 also addressed to the Minister for Labour in his capacity as the Chairman of the Central Board of Trustees of the Employees Provident Fund Organization informing that recognized unions and associations of 10 regions and unions of 10 SROs were affiliated to it and thus it was "representing more than 50% of the total workman of the EPFO".

On this basis, it was reminded that the request for recognition of the federation was pending and that the same deserved to be granted at the earliest.

At this point, the All India Employees Provident Fund Staff Federation, respondent no. 4 in the present proceedings, which was enjoying the benefit of recognition being the recognized trade union federation since 1973, raised a vehement objection to the grant of recognition to the petitioner. By a communication dated 12th of March, 2003, detailed objections in this behalf were placed by it in writing before the Central Provident Fund Commissioner.

Respondent no. 4 specifically pointed out that the petitioner was in its infancy stage and cannot claim either recognition or representative character till it completes two years of its infancy. It was also contended that the representative character of any federation ought not to be determined without proper verification as per norms at the national level and as it would disturb industrial harmony.

In the meanwhile, the petitioner had addressed another communication dated 30th June, 2003 to the then Minister for Labour as Chairman, Central Board of Trustees, EPFO stating that "the Federation ibid now covers more than 50% work force of the EPFO as its members and as such fully deserves recognition from the ''EPFO Management." Intervention of the Minister was sought to advise the EPFO to accord recognition to the Federation at the earliest.

The EPFO, respondent no. 2, has placed before this Court a copy of the petitioner''s communication dated 30th June, 2003 bearing a handwritten noting which is stated to be the decision of the then Minister in his capacity as the Chairman of the Employees Provident Fund Organisation. The noting reads thus:-

There is a board decision for adopting joint consultative machinery mechanism of genuine redressed of the employees. Let us follow that and till then Akhil Bhartiya EPF Staff Federation should be recognized provisionally. In the meantime, CLC may be requested to get the no. verified from the region.

2.7.03

Sd/-

On the same day, vide a letter dated 2nd July, 2003, the Regional Fund Commissioner informed the petitioner that the Hon''ble Labour Minister, who is also the Chairman of the Central Board of Trustees of the EPFO, was pleased to accord ''provisional recognition to it. It was also informed that the recognition would be finalised after due verification of strength as per the prevailing guidelines/instructions.

By a communication dated 17th July, 2003, the respondent no. 4 objected to this recognition being without jurisdiction and authority and that only the Central Board of Trustees could recognize a Union after adopting the procedure for adoption. The respondent no. 4 had claimed affiliation and association of all regional trade unions and asserted that the recognition given to the petitioner was in violation of the Code of Discipline under which the respondent no. 4 was recognised.

Both the respondent nos. 2 and 4 have asserted that the decision dated 2nd July, 2003 in granting provisional registration was not based on any statute and did not confer any right on the petitioner. It has been pointed out that neither the Code of Discipline nor the Central Civil Service (Recognition of Service Association) Rules (hereinafter referred to as the ''CCS Rules''), envisages grant of provisional registration to any trade union or federation. The communication dated 2nd July, 2003 clearly put the petitioner to notice that the recognition was provisional and tentative and was not a final decision in the matter at all.

The respondent no. 2 issued a circular dated 30th July, 2003 to all the Regional Provident Fund Commissioners in informing the decision of the Chairman of the CBT to accord provisional recognition to the petitioner subject to finalisation after due verification of strength as per the prevailing guidelines/instructions. At the same time, the authorities moved towards taking steps for verification of its membership. By a letter dated 6th of August, 2003 to the Chief Labour Commissioner (Central), the respondent no. 2 requested such verification.

However, the Chief Labour Commissioner sent a letter dated 26th January, 2004, informing the respondent no. 2 that the Ministry of Labour had earlier conveyed a decision that the EPFO is not an industry and that unless this decision is reviewed, it would not be possible for the Chief Labour Commissioner to conduct verification of trade union membership as per the procedure of verification of the trade union membership as per the prevailing guidelines/instructions.

Faced with this stand of the Chief Labour Commissioner and protests at the hands of respondent No. 4, the Regional Provident Fund Commissioner was compelled to take a decision in order to effect verification of membership of the respective federations in the organization. Accordingly, by a communication dated 26th February, 2004, the respondent no. 2 addressed a letter to all the Additional EPFCs and all the Regional Provident Fund Commissioners notifying them thus:-

In order to put an end to the confusion on account of the above so that an appropriate grievance redressal system can be put in place, it has become necessary to fully enforce the check-off system in all the offices. Though the check-off system was introduced in the EPF Organization way back in March, 2002. it has not been implemented properly in various office/regions. It will be the personal responsibility of the Regional Commissioners mat the check-off system is enforced in their jurisdiction including SAOs/SROs positively by the 1st March, 2004. It is needless to mention that the system is as per the guidelines delineated under the Central Civil Services (Recognition of Service Associations) Rules 1993 and the instructions issued in this regard by the Govt. of India from time to time.

The consent of each employee as to which union he supports as a member of the same, must be obtained in the enclosed format. A copy of the instructions on clarification of the membership of Recognized Service Association through check-off system is also enclosed for ready reference.

A certificate to the effect that the check-off system has been fully implemented must reach the undersigned by 7th March, 2004.

(This has the approval of the CPFC).

One such communication issued by the Regional Provident Fund Commissioner at Chennai which is dated 8th March, 2004 and has been placed on record by the petitioner shows that all staff members up to the level of Section Supervisor were thereby required to give an undertaking by the 9th of March, 2004 in the enclosed proforma, indicating as to which union they support. On the basis of their consent, Union subscription will be made through the Pay Bill. If some body did not support any Union, he/she was required to specifically write the same in the consent form he/she submits. Dual membership is not permitted.

So far as the employees of the EPFO are concerned, the organization is set up under the Employees Provident Fund and Miscellaneous. Provisions Act, 1952 and functions under the Central Board of Trustees constituted as per the provisions of this enactment. The Labour Minister is the Chairman of the Central Board of Trustees. As per Section 5(d)(vii) of the Employees Provident Fund and Misc. Provisions Act, 1952, the method of recruitment, salaries, allowances and other conditions of service of the officers and employees of the Central Board of Trustees are such as may be specified by the Central Board of Trustees in accordance with rules and conditions applicable to officers and employees of the Central Government drawing corresponding scales of pay.

In recognition of a need for a suitable forum for effective dialogue and a definite channel of communication between the employees and the management for healthier employer-employee relationship, the Central Board of Trustees of the EPFO in its 60th meeting held on 7th November, 1973 took the following decision:

The C.B.T. have always recognised the need for a suitable forum of effective dialogue and a definite channel of communication between the employees and the management for healthy employer-employee relationship. To provide such a medium of communication, the Board approved at their 58th meeting the principles governing recognition of staff associations of the employees of the E.P.F. Orgn., their rights and privileges, etc. The Board, however, could not recognise staff representative bodies as "trade unions" as in the light of the advice received from the Ministry of Law, the E.P.F. orgn., is not an ''Industry'' and the employees of the Orgn. are not ''workman'' within the meaning of the Industrial Disputes Act, 1947. This advice was based primarily on pronouncement of the Supreme Court in certain cases.

Recently, while deciding the Civil Revision Petition No. 586/1973 (Shri Mari swamy v. the Registrar of Trade Union in Mysore) the High Court of Mysore has expressed the view the activity of the E.P.F. Orgn. results in material service and it is a part of the activity of an Industry. The High Court has accordingly held that the employees of the Orgn. are ''workmen'' and the Orgn. is an ''Industry''. An appeal is being filed by the Govt. in the Supreme Court of India against the decision of the High Court. Pending a decision by the Supreme Court (which may take a few years) and in the interest of healthy employer-employee relationship, it is proposed to ''recognise'' trade union formed in the E.P.F. Orgn. in the light of the high court judgment cited above. Recognition shall be granted under the Code of Discipline in Industry.

Criteria for Recognition:

(i) Recognition of registered Trade Unions shall be at two levels. At the regional level, trade unions of employees serving in the region will be recognised. At the Central level, Federations of regional unions will be recognised.

(ii) Before, a union/federation is granted recognition, it should accept the Code of Discipline in Industry (Appendix-A) and satisfy the criteria for recognition of union given at Annexure-I to the Code.

(iii) The procedure for verification of membership of unions for the purpose of recognition shall be the same as has been specified under the Code of Discipline.

Annexure 1 to the Code provided inter alia the following criteria for "recognition of unions":-

Where there is more than one union, a union claiming recognition should have been functioning for at least one year after registration. Where there is only one union, this condition will not apply.

The membership of the union should cover at least 15% of the workers in the establishment concerned. Membership would be counter only of those who had paid their subscriptions for at least, three months during the period of six months immediately proceeding the reckoning.

When a union has been recognised, there should be no change in its position for a period of two years.

In the case of trade union federations which are not affiliated to any of the four centra organisations of labour. The question of recognition would have to be dealt with separately.

Only unions which observed the Code of Discipline would be entitled to recognition.

In a subsequent meeting which was the 31st Meeting of the Executive Committee of the Central Board of Trustees of the EPFO held on 13th August, 1999, it was decided to adopt the CCS (Recognition of Service Association) Rules, 1993 (hereinafter referred to as the ''CCS Rules'') based on the recommendation of a sub-committee set up for the purposes of examining and considering the representations/anomalies/grievances etc. of the staff and officers of the EPFO on the implementation of the 5th Central Pay Commission, This was effectuated in order to have a Joint consultative machinery for resolution of grievances and for maintaining harmonious relations in the organization.

By this decision, the earlier decision dated 7th November, 1973 would thus stand superseded and the CCS Rules apply to matters relating to recognition of associations of employees of the organisation.

Thus, on 13th August, 1999, the E.P.F.O. had adopted the Central Civil Services (Recognition of Service Associations) Rules, 1993 acting in purported compliance of the provisions of Section 5D (7) of the Employees Provident Fund & Miscellaneous Provisions Act, 1952.

The issue in the present case relates to grant of recognition of a union of the employees of EPFO - respondent no. 2 herein. So far as the recognition of a trade union is concerned, the Central Civil Service (Recognition of Service Association) Rules, 1993 (hereinafter referred to as the CCS Rules) contain the following provisions which are for convenience set out in extenso hereafter:-

Service Associations already recognised - A Service Association or a Federation which has been recognised by the Government before the commencement of these rules and in respect of which the recognition it subsisting at such commencement, shall continue to be so recognised for a period of one year from such commencement or till the date on which the recognition is withdrawn, whichever is earlier.

Conditions for recognition of Service Associations - A Service Association which fulfils the following conditions may be recognised by the Government namely:-

(a) An application for recognition of Service Association has been made to the Government containing Memorandum of Association. Constitutions, Bye-laws of the Association, Names of Office - Bearers, total membership and any other Information as may be required by the Government.

(b) the Service Association has been formed primarily with the object of promoting the common service interest of its members;

(c) membership of the Service Association has been restricted to a distinct category of Government servants having common interest, all such Government servants being eligible for membership of the Service Association.;

(d) (i) The Association represents minimum 35 per cent of total number of a category of employees provided that where there is only one Association which commands more than 35 per cent membership, another Association with second highest membership, although less than 35 per cent may be recognised if it commands at least 15 per cent membership;

(ii) The membership of the Government servant shall be automatically discontinued on his ceasing to belong to such category.

Conditions subject to which recognition is continued - Every Service Association recognised under these Rules shall comply with the following conditions, namely:-

(a) the Service Association shall not send any representation or deputation except in connection with a matter which is of common interest to members of the Service Association;

(b) the Service Association shall not espouse or support the cause of individual Government servants relating to service matters;

(c) the Service Association shall not maintain any political fund or lend itself to the propagation of the views of any political party or a member of such party;

(d) all representations by the Service Association shall be submitted through proper channel and shall be addressed to the Secretary to the Government/Head of the Organisation or Head of the Department or Office;

(e) a list of members and office bearers and up-to-date copy of the rules and an audited statement of accounts of the Service Association shall be furnished to the Government annually through proper channel after the General Annual Meeting so as to reach the Government before the 1st day of July each year;

(f) the Service Association shall abide by and comply with all the provisions of its Constitution/Bye-laws;

(g) any amendment in the Constitution/Bye-laws of the Service Association shall be furnished to the Government annually through proper channel after the General Annual Meeting so as to reach the Government before the 1st day of July each year.

(h) the Service Association shall not start or publish any periodical, magazine or bulletin without the previous approval of the Government;

(i) the Service Association shall cease to publish any periodical, magazine or bulletin, if directed by the Government to do so, on the ground that the publication thereof is prejudicial to the interests of the Central Government, the Government of any State or any Government authority or to good relations between Government servants and the Government or any Government authority, or to good relations between the Government of India and the Government of a foreign State;

(j) the Service Association shall not address any communication to, or enter into correspondence with, a foreign authority except through the Government which shall have the right to withhold it;

(k) the Service Association shall not do any act or assist in the doing of any act which, if done by a Government servant, would contravene any of the provisions of the Central Civil Service (Conduct) Rules, 1964; and

(l) communications addressed by the Service Association or by any office-bearer on its behalf to the Government or a Government authority shall not contain any disrespectful or improper language.

Verification of Membership- (1) The verification of membership for the purpose of recognition of a Service Association shall be done by the Check-off system in payrolls at such intervals and in such manner as the Government may by order prescribe.

(2) The Government may, at any time, order a special verification of membership if it is of the opinion, after an enquiry, that the Service Association does not have the membership required under sub-clause (i) of clause (d) of Rule 5.

Withdrawal of Recognition - If, in the opinion of the Government, a service Association recognised under these rules has failed to comply with any of the conditions set out in Rule 5 or Rule 6 or Rule 7, the Government may after giving an opportunity to the Service Association to present its case, withdraw the recognition accorded to such Association.

2.1 In terms of Rule 7 of the above-mentioned Rules, the verification of membership for the purpose of recognition of a Service Association shall be done by the check-off system in payrolls.

It is noteworthy that the decision of the Executive Committee of Central Board of Trustees in the meeting held on 13th August, 1999 was communicated to the Regional Provident Fund Commissioner and in charges of other regions vide the communication dated 11th October, 1999. The relevant portion of this communication reads thus:-

The executive Committee, CBT, EPF in its 31st meeting held on 13th August, 1999 in accordance with the provisions of Section 5D(7) of EPF & MP Act, 1982 has decided to implement the following regarding the Grievances Redressal Machinery for the employees of the EPFO:

(i) adoption of Central Civil Services (Recognition of Service Association) Rules, 1993 for recognition of the staff/officers associations of the Employees'' Provident Fund Organisation.

(ii) constituting the JCM at Regional level and at All India level (similar to the Departmental Council in the Central Government Departments) as per the Instructions issued by the Departmental of Personnel & Training).

In pursuance of the above, it has been decided to implement mutatis-mutandis, the CCS (Recognition of Service Association) Rules, 1993 and the instructions issued thereunder by the Department of Personnel & Training for the employees of EPFO. A copy of the CCS (Recognition of Service Associations) Rules, 1993 circulated under Department of Personnel & Training O.M. No. 2/10/80-JCA dated 9th November, 1993 and other Instructions/clarifications on the subject, are enclosed as Appendix.

As per Rule 5(d) of the CCS (Recognition of Service Associations) Rules, 1993, Important condition for recognition is that Association should represent minimum 35% of the total number of employees belonging to that particular category at all India level. No recognition for any category of Association/Union will be granted at the Regional level.

On receipt of the applications for recognition, the membership will be verified through "check-off system" prescribed by the Department of Personnel A Training instructions enclosed.

As per Rule 4 of CCS (Recognition of Service Associations) Rules, 1993 the existing Service Associations or Federations which have been recognised by EPFO shall continue to be recognised for a period of one year or till the date on which the recognition is withdrawn whichever is earlier.

RPFCs-in-charge of the Regions are requested to immediately circulate the letter with the enclosures to all officers in their respective Regions and ensure that adequate publicity is given to these instructions.

Under the CCS Rules of 1993, the check off system for verification of membership was introduced. Due to certain reasons/difficulties, this decision was not implemented. It is vide the letter dated 3rd December, 2003, noticed hereinabove, that the respondent no. 2 directed all the Regional Provident Fund Commissioners to implement the applicability of CCS. (Recognition of Service Associations) Rules, 1993 and also issued other instructions and clarifications.

The communication dated 3rd December, 2003 sent by the Employees Provident Fund Organisation to all regional P.F. Commissioners reiterated the applicability of the CCS. (Rules) and reads thus:-

The executive Committee, CBT, EPF in its 31st meeting held on 13th August, 1999 in accordance with the provisions of Section 3D(7) of EPF & MP Act, 1932 has decided to Implement the following regarding the Grievances Redressal Machinery for the employees of the EPFO;

(iii) adoption of Central Civil Services (Recognition of Service Association) Rules, 1993 for recognition of the staff/officers associations of the Employees'' Provident Fund Organisation.

(iv) constituting the JCM at Regional level and at All India level (similar to the Departmental Council in the Central Government Departments) as per the instructions issued by the Departmental of Personnel & Training).

In pursuance of the above, it has been decided to implement mutatis-mutandis, the CCS (Recognition of Service Association) Rules, 1993 and the instructions issued thereunder by the Department of Personnel & Training for the employees of EPFO. The instruction for the same had been circulated vide this office letter No. IR/11(37)CCS (RSA Rules) dated 11-10-1999. However due to certain difficulties, the same could not be implemented till date. The situation has been reviewed and it has been decided by the competent authority to implement the decision of Executive Committee referred to above. In this regard a copy of the CCS (Recognition of Service Association) Rules, 1993 circulated under Department of Personnel & Training O.M. No. 2/10/80-JCA dated 9th November, 1993 and other instructions/clarifications on the subject, are enclosed as Appendix ''A''.

Keeping in view the classification adopted in EPFO and the instructions issued by the DOP&T for recognition of Service Association, it is proposed that the Service Association may be recognized for each of the following four categories of employees separately at the All India level:

As per Rule 5(d) of the CCS (Recognition of Service Association) Rules, 1993 important condition for recognition is that Association should represent minimum 35% of the total number of employees belonging to that particular category at All India level No recognition of any category of Association/Union will be granted at the Regional level.

On receipt of the applications for recognition, the membership will be verified through "Check-off" system prescribed under above rules and instructions and clarification issued by Govt. of India time to time.

RPFCs-in-charge of the Regions are requested to immediately circulate this letter with the enclosures to all offices in their respective regions and ensure that adequate publicity is given to these instructions.

According to the E.P.F.O., in view of the refusal by the Central Labour Commissioner to effect the membership verification as communicated vide its letter dated 29th January, 2004, the E.P.F.O. was compelled to proceed with the check off system for which the circular dated 26th February, 2004 was issued. This check off system of membership verification was implemented in July, 2005. It is noteworthy that on 26th February, 2004, the E.P.F.O. had addressed a communication that the check off system which was introduced in March, 2002, has to be properly implemented and a certificate to this effect has to be furnished by 7th March, 2004. This letter was endorsed to the petitioner as well as to the respondent no. 4. Thus, the petitioner was fully aware about the verification of the membership by the check off system, its implementation by the respondent no. 2 as well as the consequences thereof. The petitioner has accepted the applicability and validity of the check off system for membership verification as deposed in the counter affidavit filed to the Writ Petition (C) No. 4677/2004 in the High Court of Kerala.

It appears that the ''check off system is a means of verification of the membership of an association on the basis of deduction of subscription from the payrolls of employee. Under this system, each employee of the Organization who is a member of the Association, is required to apply, in writing, to the Drawing and Disbursement Officer or any other designated authority of the employer, to deduct the annual subscription from the payrolls in favour of a particular association. On receipt of the application, the Association is required to confirm the membership and thereafter pass on the application to the DDO for effecting recoveries.

Furthermore, under the check off system, the Government servant may subscribe to only one association. For the purpose of fulfillment of the requirement of minimum membership under Rule S(d)(i) of the CCS Rules, 1993, only such of the members who have paid the subscription through the check off system shall be taken into account.

Recoveries of subscription from the payroll in favour of a particular association are required to be made by the D.D.O. of the E.P.F.O. This information is to facilitate the department to conclusively verify the claims of the unions/associations about their actual support.

My attention has been drawn to a letter dated 8th March, 2004 issued from the Regional Provident Fund Office at Chennai, which has been filed with the writ petition, showing how the check off system had to be implemented. Each employee was required to fill in the letters of authorization signed by him giving his consent in favour of a particular union and the same was to be countersigned by the authorised signatory of the particular union. The petitioner had participated in the check off system. Letters of authorization were signed by employees who were its members in their favour and countersigned by the authorised representative of the union.

During the course of hearing in this writ petition, the respondent no. 2 has placed before this court a letter dated 11th May, 2005, addressed by the Regional Provident Fund Commissioner II from Chennai to the Central Provident Fund Commissioner at New Delhi. This communication has been addressed by the Regional Provident Fund Commissioner enclosing a copy of the option form exercised by Mr. M.V. Mukandan, Secretary of the petitioner and also a form authorised by Shri M.V. Mukandan on behalf of the members who have opted for the E.P.F. Tamil Nadu Staff Union. This letter of authorisation is pursuant to the implementation of the check off system and deduction of the subscription towards the membership of the association from the salary of the employees.

The petitioner does not dispute any of these facts.

After issuing various communications, giving necessary instructions and clearances, the respondent no. 2 obtained the all India level position with regard to the strength of the unions at the regional office level and the federation at the India level. The status of the membership strength of the petitioner and the respondent no. 4 was informed by the note dated 6th August, 2004 which is revealed as under:-

It, therefore, appears that the claim of the petitioner was not supported by the result which emerged on a membership verification by the check off system. The petitioner had only 9.5. percentage of support as against 67% support enjoyed by the respondent no. 4. In these circumstances, it is evident that the petitioner did not have even 15% support as was necessary under the Code of Discipline let alone the 35% support required under CCS Rules. Accordingly, a decision was taken by the Minister of Labour who was the Chairman of the Central Board of Trustees of the Employees Provident Fund, withdrawing the provisional recognition given to the petitioner which was communicated to the branch offices vide the letter dated 16th September, 2004. Copy of this letter was endorsed to the petitioner as well as the respondent no. 4. The communication dated 16th September, 2004 was followed by a letter dated 22nd September, 2004 addressed on behalf of the Government of India to the FA&CAO of the respondent no. 2 enquiring about proposal; if any, of Withdrawal of recognition to the union at the regional level. Such proposal with details including the reasons for recommending the Withdrawal of provisional recommendation. The above decision was also communicated by letter dated 1st October, 2004 to all the Regional Provident Fund Commissioners.

The present writ petition has been filed only on or about the 8th of December, 2004 seeking inter alia, the quashing of the letters dated 16th September, 2004; 22nd September, 2004 and 1st of October, 2004. The petitioner also seeking quashing of the report dated 6th August, 2004 and a declaration that the check off system envisaged in the Central Civil Services (Recognition of Service Associations) Rules, 1993 is unconstitutional and void. A prayer is made that verification of membership be effected by secret ballot. Other prayers have been made in the alternative.

The writ petition has been vehemently opposed by the respondents on factual and legal grounds.

It becomes necessary to examine the first objection which has been raised on behalf of the respondent no. 4 that a writ petition seeking to challenge the withdrawal of recognition to the association is not amenable to writ proceedings. According to the respondent no. 4, the petitioner has no legal right and there is no cause of action for invoking the jurisdiction of this court. In this behalf, the respondents have also urged that the Code of Discipline under which the petitioner is claiming relief, is without statutory force and consequently also the petitioner has no legal right which could be enforced by way of the present writ petition.

Learned counsel for the petitioner has placed before this court two judgments wherein the exact issue raised before this court was urged by the respondents. In Tamil Nadu Electricity Board Vs. Tamil Nadu Electricity Board Accounts and Executive Staff Union, Accounts and Executive Staff Union, the two questions raised before the Division Bench were firstly, whether the withdrawal of recognition of according to an trade union can be challenged in a writ petition; and secondly, whether the Code of Discipline for industry in industry is statutory in character.

The Bench answered these questions thus:-

Admittedly, there is no statutory provision in this case dealing with the question of recognition or de-recognition. Equally admittedly the Code of Discipline in Industry is not statutory. Not withstanding this, it is conceded by the learned counsel for the appellant that the Code of Discipline in Industry does contemplate recognition and that it was only under that code recognition was applied for and granted. It is not disputed that the grant of recognition confers a status on a body like the respondent-union, and with reference to such adverse consequences, even an order of Withdrawal like the one made by the appellant if it is illegal or is in violation of principles of natural justice. Certainly a body like the respondent-union can approach this Court under Art. 226 of the Constitution of India. Therefore, we reject the contention of the learned counsel for the appellant that the writ petition was not maintainable.

Mr. K. Venugopal, learned counsel for the petitioner, placed reliance on another pronouncement of the High Court of Madras, reported at T.N.E.B. Engineers'' Sangam Vs. Tamil Nadu Electricity Board, Supervisors'' Sangam was a union registered under the Trade Unions Act, 1926. It was conferred recognition by the Tamil Nadu Electricity Board on the 5th February, 1970. In 1979, it changed its name to the T.N.E.B. Engineers'' Sangam. A show cause notice dated 4th April, 1995 was issued by the Chairman of the Tamil Nadu Electricity Board accusing the members of the petitioner of staging a dharna in front of the Board Secretariat and disrespectful slogans against the officers of the Board. By this show cause notice, they were asked as to why the recognition given to the union should not be withdrawn. The union sent a detailed representation and also the question for holding of an inquiry. However, by an order dated 23rd May, 1995, the Board withdrew the recognition granted by the union on a specious plea that they had not followed the conditions of recognition granted to the union by breaching the Code of Discipline. This order dated 23rd May, 1995 was impugned by the Union by way of a writ petition under Article 226 of the Constitution of India. The court referred to the pronouncement in the Tamil Nadu Electricity Board (supra) and thereafter observed thus:-

As already seen, it is the contention of Mr. K. Chandru, that the respondent has passed the impugned order without any enquiry whatsoever even though it is stated in the order that on enquiry the order is so passed. Admittedly no enquiry was conducted in this case. Therefore, the impugned order has to be quashed as illegal and is in violation of principles of natural justice. In the instant case, though notice was issued by the respondent on April 4, 1995 directing the petitioner-union to explain as to why the recognition granted to it as a union of industrial employees should not be withdrawn, a detailed reply was sent by the petitioner-union on April 19, 1995 explaining their clear and categorical stand and at the same time requesting the respondent for an inquiry in case the respondent chooses to proceed further with the show cause notice. However, the respondent without giving any opportunity as prayed for, has passed the impugned order.

Without sending and reply on the extension application, the management withdrew the recognition. Therefore, the withdrawal of recognition was challenged by the union by filing a writ petition. Allowing the writ petition and making the rule nisi absolute, the Nagpur Bench held as follows in para 4 at page 158.

It is difficult to hold that refusal to grant recognition and withdrawal of recognition once granted can be placed on the same footing. Primary purpose of a trade union is collective bargaining and only recognised unions can properly wield that authority and influence. Recognition once obtained by the union becomes its soul and gives it a new vigour as an authorised bargaining agent of the members and indeed raises its status to a new height. Any union can ill-afford to lose that in case it wants to continue efficiently and effectively to serve the cause of the workers for which alone it is recognised. In any case, derecognition adds insult to the injury in case it is passed as a disciplinary measure and is for alleged commission of offence and or acts of indiscipline. Such an order attaches stigma and is plainly punitive in nature.

The bench has further observed that the application of principles of natural justice does not depend upon either statute or upon a positive term in the agreement requiring compliance, and this is not a case where the application of principles of natural justice has been excluded by agreement. The Division Bench disagreed with the Kerala High Court and agreed with the Madras view in Tamil Nadu Electricity Board Accounts and Executive Staff Union Vs. Tamil Nadu Electricity Board,

IN Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, the Supreme Court while dealing with the question of administrative action and when it becomes quasi judicial, has observed as follows:-

An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support there of and must be given a fair opportunity to meet the case before an adverse decision is taken.

Admittedly, the respondent has granted recognition to the petitioner-union. When it wants to undo that recognition by de-recognising, it is incumbent upon the respondent to give opportunity to the petitioner-union and to state valid reasons for derecognition. In other words, the derecognition cannot be done in an arbitrary manner. Therefore, W.P.NO. 8037 of 1995 is allowed and the order impugned withdrawing the recognition granted to the petitioner, union is quashed.

Therefore, so far as recognition of a trade union is concerned, it is settled law that recognition has important consequences. It is equally well settled that writ petitions are not confined to adjudication of pleas of only statutory violations. Writ petitions have also been held to be maintainable where enforcement of public policy is concerned. Therefore, merely because the Code of Discipline has been held to be non-statutory, cannot impact maintainability of a writ petition wherein it is urged that the recognition of the Union has been withdrawn illegally or protection of the recognition is sought.

In the instant case, the decision dated 2nd July, 2003 of the then Chairman itself stated that the same was without effecting any verification of the membership of the petitioner and consequently was not based on any assessment of its strength and support. It had been given on a claim made by the petitioner. For this reason, it was clearly indicated that the recognition was provisional and subject to verification of the membership claimed by the petitioner.

The petitioner has raised a challenge that the provisional recognition granted to the petitioner vide the letter dated 2nd July, 2003 cannot be withdrawn without compliance of principles of natural justice.

In the T.N.E.B. Engineers Sangam''s case (Supra), the court has held that the withdrawal of the recognition once given cannot be without compliance with the principles of natural justice.

Learned counsel for the petitioner has also placed reliance on the Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis, entitled West Bengal Electricity Regulatory Commission Vs. C.E.S.C. Ltd. etc. etc., Shri Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another, Shri Farid Ahmed Abdul Samad & Anr. v. The Municipal Corporation of the City of Ahmedabad & Anr. in support of this submission.

In Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis, the Supreme Court held thus:-

Rule 143 of the municipality provides two things. First, no officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his defence. Any written statement tendered shall be recorded and written order shall be passed thereon. Second, every order of dismissal or confirming dismissal shall be in writing and shall specify the charge or charges brought, the defence and the reasons for the order.

In West Bengal Electricity Regulatory Commission Vs. C.E.S.C. Ltd. etc. etc., the court was considering the right of hearing granted to the consumers under the regulations framed under the West Bengal Electricity Regulatory Commission (Conduct of Business) Regulations, 2000 and held thus:

That apart, when a statute confers a right which is in conformity with the principles of natural justice, in our opinion, the same cannot be negatived by a court on an imaginary ground that there is a likelihood of an unmanageable hearing before the forum concerned. As noticed above, though normally price fixation is in the nature of a legislative function and the principles of natural justice are not normally applicable, in cases where such right is conferred under a statute, it becomes a vested right, compliance of which becomes mandatory. While the requirement of the principles of natural justice can be taken away by a statute, such a right when given under the statute cannot be taken away by courts on the ground of practical inconvenience, even if such inconvenience does in fact exist. In our opinion, the statute having conferred a right on the consumer to be heard in the matter pertaining to determination of the tariff, the High Court was in error in denying that right to the consumers.

In the instant case there is no such requirement under any statutory provision.

In Shri Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another, the court was considering the requirement of hearing the person effected in proceedings u/s 5-A of the Land Acquisition Act, 1894. In this context, the court held that the objections of the party to acquisition of his land would be an empty formality and its suggestions would be devoid of practical utility unless personal hearing was given to the objector.

The principles laid down in these judicial precedents have to be considered and applied vis-a-vis the factual matrix of the present case. Apart from the facts noticed above, important admissions on the part of the petitioner on judicial record require to be considered.

It appears that the respondent no. 4 was aggrieved by the provisional recognition given to the association of the petitioner and had assailed the same before the High Court of Judicature at Kerala by way of WP No. (C) No. 4697/2004 filed through Mr. B. Rama Kharvey, the Secretary General of the All India Employees Provident Fund Staff Federation, (the respondent no. 4 in the present proceedings). This writ petition was filed against the Union of India as respondent no. 1, the Employees Provident Fund Organization as respondent no. 2 and the Akhil Bhartiya Employees Provident Fund Staff Federation, the present petitioner, as the respondent no. 3.

The petitioner Shri B. Rama Kharvey, had contended that the All India Employees Provident Fund Staff Federation, the respondent no. 4 herein, had been recognised by the EPFO after due verification of its strength on the 7th of January, 1985 and that action was being taken under the Code of Discipline which was applicable to all matters relating to recognition of trade unions.

It was further contended that in the scheme of recognition of the trade unions there is nothing called ''provisional recognition'' and that the minister or the chairman of the board of trustees of the 2nd respondent is not the competent authority to decide on the recognition and that the minister had not placed the matter for consideration either before the central board or before the central provident fund commissioner who is the secretary of the central board of trustees of the EPF. Moreover, going by the criteria and Code of Discipline, there cannot be more than one trade union in the establishment. The recognition is to be given only after due verifications by the central labour department and only after the trade union concerned accepted the Code of Discipline prior to the grant of recognition.

The provisional registration was also assailed on the ground that the minister/chairman of the board of trustees was not the competent authority in the matter of granting recognition to the trade unions in the 2nd respondent and that the minister/chairman had not placed this matter before the board of trustees prior to taking the decision to grant provisional promotion to the 3rd respondent.

Based on inter alia these submissions, the petitioner had sought a declaration that the provisional recognition granted by respondents 1 & 2 to the 3rd respondent was arbitrary, illegal and in violation of the norms/criteria and its consequent quashing.

The present petitioner through Shri M.B. Mukundan functioning as its Secretary General filed its counter affidavit to the writ petition which has been placed on the record of this court by the petitioner itself. Inter alia, the present petitioner on affidavit, pleaded as hereafter:-

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Para 3 of the Writ Petition is not fully correct. On 7/11/1973 CBT held its 58th meeting. The said meeting never decided to grant recognition to trade unions in the 2nd respondent organisation Ext. p1 has no relevant at present. The Government of India, Dept. of Personnel and Training, vide O.M. No. 2/10/80-JCA dt. 9/11/1993 issued Rules for Recognition of Services Association, which is squarely applicable to the 2nd respondent Organization. The employees of 2nd respondent Organisation are considered as Government Servants since the Central Civil Services (Conduct) Rules, 1964 are applicable to them, A true copy of the above cited O.M. is marked as Ext. R3-1.

It is most respectfully submitted that based on Exts. R3-1 & 2 the 3rd respondent preferred request application to the concerned authority with all requisites for recognition of a Services Association. The 1st respondent Ministry granted Ext P8 provisional recognition to the 3rd respondent. The provisional recognition granted to the 3rd respondent is in order and in accordance with Ext R-3-1 Rules, which is the only applicable Rules existing in the 2nd respondent organization for granting recognition to Employees Association or Federation.

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Conditions for recognition of service as Association are laid down at Rule 5 (a) to (h) of Ext. R3-1. According to Rule 5 (d)(i) - The Association represents minimum 35% of total number of a category of employees provided that where there is only one Association which commands more than 35% membership another Association with second highest membership, although less than 35% may be recognised, if it commands at least 15% membership." The 3rd respondent enjoys the support of more than 35% membership in the All India level. If a verification is made based on the check-off system in pay rolls, it can be revealed. The Government is free to order a special verification of membership, if it is of the opinion, after an enquiry, that the Service Association does not have the membership required under Sub-clause (i) of Clause (d) of Rule 5.

The EPFO had also vehemently contested the WP (C) No. 4697/2004 pointing out that the decision taken in the meeting dated 7th November, 1973 did not govern the matters relating to recognition of trade unions and that the EPFO had introduced the Central Civil Services (Recognition of Service Associations) Rules, 1993 which were in force.

The E.P.F.O. also filed a counter affidavit before the Kerala High Court wherein, inter alia, it took the following specific pleas:-

Employees'' Provident Fund Organization is set up under the EPF & Miscellaneous Provisions Act, 1952 and functions under the Central Board of Trustees constituted as per the provisions of the above Act. Labour Minister is the Chairman of Central Board of Trustees.

Under Section 5D(7), the method of recruitment, salary, allowances and other conditions of service of officers and employees of Central Board should be such as may be specified by Central Board in accordance with the rules and orders applicable to officers and employees'' of Central Government drawing corresponding scales of pay.

However, subsequently, in view of the above provisions i.e. Section 5D(7) it was considered necessary to adopt the Central Civil Services (Recognition of Service Associations) Rules, 1993. Accordingly, the Executive Committee in the absence of no specified provision to deal such type of situation, it is within the inherent administrative power of the Principal authority to take the best decision to deal the situation. In the absence of known strength of both the federation, the provisional recognition was appropriate administrative decision.

In reply to paragraph 3 it is submitted that Central Board of Trustees in its 60th meeting held on 7.11.1973 decided the procedure for recognition. However, subsequently, Executive Committee, Central Board of Trustees in its meeting 13.08.99 has adopted the Central Civil Services (Recognition of Service Association) Rules, 1993. Hence, the earlier decision of Central Board of Trustees accordingly has been superceded/withdrawn/modified.

In reply to Paragraph 5, 6 7, 8 & 9 it is submitted that the recognition was given to the Petitioner in 1984 which has not been further extended nor withdrawn. In view of the position explained above the AIEPFSF (Petitioner) cannot claim itself to be solely recognized.

WP (C) No. 4697/2004 was dismissed by a judgment dated 24th September, 2004. The court found substance in the preliminary objection with regard to the authority of the petitioner to file the writ petition. However, the court did not find any acceptable basis for grant of relief even on the merits of the matter.

The writ was accordingly dismissed and it was clarified that the respondents were free to follow appropriate cause of action in the matter of recognition of unions and associations as per the governed rules.

The basis of the challenge laid before this court by the petitioner were the very contentions of Mr. B. Rama Kharvey which stand effectively rejected by the High Court of Kerala. This judgment has attained finality. Certainly the admissions of the petitioner and the judgment of the Kerala High Court would bind adjudication in this writ petition.

In addition to the above, the judicial pronouncements cited by the petitioner have to be considered on certain material facts.

Interestingly, the following facts have emerged on the record of this case:-

(i) The petitioner has claimed the vote of more than 35% membership at the All India Level in its communication dated 24th December, 2002 and the counter affidavit which was filed by it before the High Court of Kerala.

(ii) The petitioner itself had taken the stand that the membership verification has to be undertaken by following the check off system. In fact, a request was made to the respondent no. 2 also in this behalf.

(iii) There is no provision for grant of provisional recognition to a Union or Association under either the Code of Discipline or under the CCS Rules.

(iv) Provisional recognition given to the petitioner was without verification of the membership claim and was granted by only the Chairman of the EPFO & not by the Executive Committee.

(v) The petitioner was given only provisional recognition subject to verification of its claimed membership vide the letter dated 2nd July, 2003 and the check off system was implemented after a prolonged process of obtaining declaration on the 31st July, 2004.

(vi) The petitioner applied for recognition under the Central Civil Services (Recognition & Service Association) Rules, 1993.

(vii) The Central Labour Commissioner vide its letter dated 20-10-2004 had declined to undertake the member verification on the ground that the Employees Provident Fund Organisation was not an industry.

(viii) The petitioner had taken a stand in the counter affidavit filed in the High Court of Kerala in WP (C) No. 4697/2004 that the Employees Provident Fund Organisation is not an industry and no trade union movement is permitted therein. In fact, a specific plea was taken that the respondent no. 4 was not recognised as a staff representative body of the Central Board of Trustee as the union in view of advice given by the Ministry of Law which was of the opinion that the Employees Provident Fund Organisation was not an industry.

(ix) The Central Board of Trustees issued a circular to all officers throughout the country vide a letter dated 26th February, 2004 when it decided to go ahead with the membership verification following the check off system as per the Central Civil Services (R.S.A.) Rules, 1993. This letter was endorsed to and received by the petitioner.

(x) Options were called for in terms of the check off system in February, 2004 giving sufficient time for the communication to each member and to return the same. The petitioner accepted the validity and legality of this check off system. Its Secretary Mr. K.V. Mukundan submitted options received from different individuals who were its claimed members duly countersigned by the respective authorised representatives of the union/association. This system was implemented simultaneous in all regions in the month of June, 2004. The result received was consolidated and then the decision was taken by the Chairman of the Central Board of Trustees.

(xi) The petitioner duly participated in the membership verification and the decision to implement the check of system. The petitioner raised no objection whatsoever. It has members in the group ''B'' as well as group ''C'' & ''D'' It willingly participated in the entire process without raising even a whisper of a protest either on the membership covered or the method adopted.

(xii) The respondent no. 2 has stated that in the regional office in Tamil Nadu, sizeable members of staff members did not opt for the check off system as they had withdrawn their membership with the petitioner.

(xiii) The petitioner was fully aware of the implementation of the check off system and had participated in the same and as such, is estopped from questioning its adequacy and alleging that the same is illegal or invalid.

(xiv) It is a fact that the respondent no. 1 is not a department or part of the respondent no. 2. The respondent no. 2 is a statutory body created under the provisions of Employees Provident Fund & Miscellaneous Provisions Fund Act, 1952.

(xv) The petitioner has filed this writ petition only after the check off system for verification of the membership had been effected and its outcome known.

In the instant case, the provisional membership granted to the petitioner was clearly subject to verification of the membership. On a verification of the membership, the petitioner was found to be having numbered much below than the required number. The petitioner did not even have the 15% membership required for recognition required under the Code of Discipline. The provisional recognition granted to the petitioner was not granted after following the process of verification. The rules postulate grant of recognition after carrying out the membership verification as per the rules. The petitioner has been unable to make out any statutory right or any right under any applicable rule to grant of the provisional membership which has been withdrawn. Certainly, in this background, the violation of principles of natural justice could be held to have caused prejudice only if any legally tenable right stood impacted. In the instant case, no such right of the petitioner was affected. The petitioner has also not made any prejudice which has been caused to it. The contention that the orders of the respondent no. 2 or the action of the respondents must fail on grounds of violation of principles of natural justice is untenable and is hereby rejected. Furthermore it was the case of the petitioner itself in the proceedings before the High Court of Kerala and it had sought for verification of membership by the check-off system.

Mr. V.S.R. Krishna learned counsel representing the respondent no. 2 has placed reliance on the principles laid down by the Apex Court in Canara Bank and Others Vs. Shri Debasis Das and Others, wherein the following principles were laid down:-

How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been involved as representing the principles of natural justice in judicial process, including a therein quasi judicial and administrative process. They constitute the basic elements of a air hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ''nemo judex in causa sua'' or ''nemo debet esse judex in propria causa sua'' as stated in (1605) 12 Co. Rep. 114 that is, ''no man shall be a judge in his own cause''. Coke used the form ''aliquis non debet esse judex in propria causa qua non protest esse judex at pars'' (Co. Litt. 1418), that is, ''no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party''. The form ''nemo potest esse simul actor at judex'', that is, ''no one can be at once suitor and judge'' is also at times used. The second rule is ''audi alteram partem'', that is, ''hear the other side''. At times and particularly in continental countries, the form audiatur et altera pars'' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ''qui aliquid statuerit parteinaudita alteram actquam licet dixerit, haud acquum facerit'' that is, ''he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right'' (See Bosewell''s case (1605) 6 Co. Rep. 48-b, 52-A) or in other words, as it is now expressed, ''justice should not only be done but should manifestly be seen to be done''. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

As noticed above the petitioner has been unable to point on any statutory provision whereunder it was given the provisional recognition. There is certainly no basis for such recognition without verification of the membership claim. Consequently it has to be held that the orders passed by the respondents withdrawing the provisional recognition are not rendered illegal for non-compliance of principles of natural justice.

The parties are at variance on the manner in which verification of membership is to be effected. While the petitioner is contending that the verification is to be effected only by conducting a secret ballot as prescribed under the Code of Discipline. On the other hand, the respondents contend that the check off system provided under the Central Civil Service (Recognition of Service Association) Rules, 1993 is adequate.

It is necessary to understand the procedure adopted to effectuate this system for membership verification. Trade unionism has certainly made effective contribution to social security and harmony and has even influenced Government policy on matters relating to the industrial relations and labour welfare. Towards promotion of healthy trade union activities, the Central Government formulated the Code of Discipline (hereafter referred to as ''the Code''). This Code was ratified by the All India Organization of Employers and Workers at the 15th Session of the Indian Labour Conference held at Nainital in May, 1958 and came into force with effect from 1st of June, 1958. It was formulated to maintain a certain standard of discipline in dealing with each other with the main object of ensuring better discipline in industry and to facilitate peaceful settlement of disputes. The Code has been described as a gentleman''s agreement between employer and employees to achieve the afore-noticed objectives. It aims at a just recognition by employers and workers of the rights and responsibilities of either party as defined by laws and agreements including bipartite and tripartite agreements arrived at all levels from time to time. It is also aimed at a proper and willing discharge by either party of its obligations consequent on such recognition.

Apart from providing covenants which were agreed to by Managements and Unions, the Code also provides criterion for recognition of a trade union. In this behalf, bearing in mind the issues raised in the instant case, it is necessary to notice the relevant provisions for recognition of unions in extenso which read as hereunder:-

Criteria for recognition of Unions. ----- (1) Where there is more than one union, a union claiming recognition should have been functioning for at least one year after registration, (where there is one union, this condition would not apply).

The membership of the union should cover at least 15% of the workers in the establishment concerned. Membership would be counted only of those who had paid their subscriptions for at least three months during the period of six months immediately preceding the reckoning.

A union may claim recognition, as a representative union for an industry in a local area if it has a membership of at least 25% of the workers of that industry in that area.

(4) When a union has been recognized, there should be no change in its position for a period of two years.

(5) Where there are several unions in an industry or establishment, the one with the largest membership should be recognized.

(6) A representative union for an industry in an area should have the right to represent the workers in all the establishments in the industry, but if a union of workers in a particular establishment has a membership of 50% or more of the workers of that establishment it should have the right to deal with matters of purely local interest, w.e.f. the handling of grievances pertaining to its own members. All other workers who are not members of that union might either operate through the representative union for the industry or seek redress directly.

(7) In the case of Trade Union Federations which are not affiliated to any of the four Central Organizations of Labour, the question of recognition would have to be dealt with separately.

(8) Only unions which observed the Code of Discipline would be entitled to recognition. This will go a long way in stabilizing industrial relations in our country.

From the result of the verification process noticed above the petitioner is grossly deficient even in meeting the prescribed representation under the Code of Discipline.

The issue of efficacy of the check off system which has come up for consideration in several cases. One of the issues raised before the Court has been ''as to whether the membership verification process by the check off facility can be extended even to unrecognized unions. Such an issue arose for consideration before the Court in the case of State Bank Staff Union (Madras Circle) v. The State Bank of India, in its pronouncement in this case reported at State Bank''s Staff Union (Madras Circle) Vs. The State Bank of India, the court held thus:-

The common question raised in all these writ petitions is whether check-off facility can be extended by the respective Bank management to unrecognized unions. The petitioners in all these writ petitions contended that the check-off facility which had been either to extend only to recognised unions should not be extended to unrecognized unions, even though they are registered unions.

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It is common ground that the Code of Discipline on which heavy reliance was placed by the learned counsel appearing for the writ petitions is not statutory in character and there is nothing to suggest that the check-off facility must be given only to recognized unions. If this much is not in dispute, the further question will be, whether the writ petitioners are justified in invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution seeking the aid of this Court to prevent the extension of check-off facility to all the registered unions. We find no difficulty in holding that the petitioners have no right to seek the relief of either the writ of mandamus directing the bank managements not to extend the check off facility to all registered unions pursuant to the direction/advice given by the Government of India by their letter dated 11.1.1988 or to quash the decision extending such facility to all registered unions. We shall give our reasons for coming to this conclusion.

23-A. As noticed earlier, the bone of contention in support of the relief prayed for in the writ petitions is that the recommendation of the 15th Labour Commission to extend the check-off facility only to the recognized union being based on the ground that this will enable the recognized union to fight the mighty management effectively, that object will be frustrated if the facility is extended to all registered unions and the union''s strength and financial status will also be seriously effected. This argument cannot be accepted in view of public sector banks, the facility of check-off system has already been extended to all registered unions and there is no complaint from the recognized union that as a result of giving of such facility to all registered unions, the strength and financial status of the recognized union has been weakened. Further, if in law, there is no right to claim that the recognized union alone should be given the check-off facility the writ petitions are not well founded in moving this Court for such a relief. In this connection the argument of Mr. D. Murugesan that after the review of the recommendation of the 15th National Commission on Labour in the National Labour Conference held at New Delhi on 17th and 18th September, 1982 and after the Tripartite Agreement, it is no longer open to the petitioners to rely on the recommendation of the 15th National Commission on Labour, assuming that it gives some support to the petitioners'' contention, is well founded.

We are also inclined to accept the argument advanced by Mr. D. Murugesan and Mr. Chandra that Section 2(kkk) of the Payment of Wages Act supports the case of the respondents that the checkoff facility should not be restricted to the members of the recognized unions alone.

Thus it was recognized that the Code of Discipline is not statutory and that the issue of membership verification can be extended by the Management to even unrecognised trade unions so long as they were registered.

In Food Corporation of India Staff Union Vs. Food Corporation of India and others, the Apex Court was called upon to examine as to which method would be efficacious for effecting membership verifications. The issue raised was as to whether the verification ought to be by the check-off system or by the secret ballot system. In this case, however, the parties by consent agreed to follow the secret ballot system and consequently the Apex Court was not required to answer the issue as to whether the secret ballot system ought to be the only system by which the membership verification deserved to be effected. However, in view of the reliance placed on certain observations made by the Apex Court in this judgment by both parties, it would be useful to set out the same in extenso:

Collective bargaining is the principle raison d''etre of the trade unions. However, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishment, the trade union is the first required to get itself registered under the provisions of Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body; the names and occupation of whose office-bearers also become known. But when in an establishment, be it an industry or an undertaking, there are more than one registered trade unions, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workmen/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employer should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discussion and some dispute. The "check off system" which once prevailed in this domain has lost its appeal; and so, efforts are on to find out which other system can foot the bill. The method of secret ballot is being gradually accepted. All concerned would, however, like to see that this method is so adapted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking.

In the case before the Apex Court, the parties had agreed to verification by secret ballot. Therefore, the court was not required to decide on the efficacy, legality or validity of either method.

From the above, whatever be the views on the system, it is still applied to effectuate membership verification in different organisations. The EPFO had taken a decision on 13th August, 1999 to implement the same. No decision to the contrary is pointed out.

It is noteworthy that the petitioner has not pointed out any specific legal provision under which the respondent nos. 1 & 2 are required to give recognition to staff associations. Before the High Court of Kerala, the petitioner had taken a categorical stand that the rules for recognition of service associations as applicable to the government of India were squarely applicable to the Employees Provident Fund Organisation. It was also stated that the employees of the Employees Provident Fund Organisation are considered as government servants since the Central Civil Services (Conduct) Rules, 1964 are applicable to them. It was the categorical stand of the petitioner that the provisional recognition has been granted to it in accordance with these Central Civil Services Rules which were the only rules applicable to the Employees Provident Fund Organisation for granting recognition to the employees associations or federations. The petitioner asserted its entitlement and right to be recognised on the plea that it represents the minimum of 35% of the total number of the category of employees provided as there is only one association so commanding. According to the petitioner, even an association having less than 35% staff membership may be recognised if it commands at least 15% membership. For this purpose, the petitioner placed reliance on the C.C.S. Rules afore noticed wherein these requirements were laid down. The petitioner even in the pleadings before the High Court at Kerala had stated that the verification is made based on the check off system in payroll would reveal this position and membership.

Before this court a strong plea has been urged that the Central Civil Service (Recognition of Service Association) Rules, 1993 were never adopted by the Employees Provident Fund Organisation. To support this submission, the petitioner has placed reliance on the letter dated 18th April, 2000 and submitted that the respondents have failed to controvert this position stated on behalf of the petitioner.

In order to decide the implication and effect of this communication of 18th April, 2000, it becomes necessary to examine the same closely. This letter has been addressed by Mr. C. Bheemanna, Additional CPFC (HR) to the Secretary of the Government of India and pertains to the proposal for implementation of the instructions on joint consultative machinery in the Employees Provident Fund Organisation. In para 4 of this communication, the author of the letter has specifically noted that a report of the sub-committee recommending adoption of the Central Civil Services (Recognition of Service Associations) Rules, 1993 for recognition of the staff/officers/association of the Employees Provident Fund Organization was considered by the Executive Committee of the Central Board of Trustees, E.P.F. in its 31st meeting held on 13th August, 1999. Further, in para 6 of this letter, it has been stated that based on the afore-noticed recommendations of the sub-committee of the Central Board of Trustees, E.P.F., keeping in view the provisions of Section 5-B(7)(a) of the Act and "decision of the Executive Committee, CBT, EPF" a circular was issued to all regional officers regarding adoption of the Central Civil Services (Recognition of Service Associations) Rules, 1993 in October, 1999.

In this communication, reference is made to a representation of the respondent no. 4 requesting for keeping the instructions regarding implementation of the CCS Rules in abeyance. The communication, therefore, submits that the adoption of the Central Civil Service Rules for the employees of the EPFO had merely been deferred.

It has been urged that the Central Civil Service Rules apply to service associations. There is no dispute that the petitioner and the respondent no. 4 are both unions which has as its members only the employees of the respondent no. 2 and consequently would be covered under the service associations referred to in the CCS Rules.

It is noteworthy that so far as this court is concerned, the only method and manner of taking of decisions in relation to the affairs of the Employees Provident Fund Organisation is by the Executive Committee of the Central Board of Trustees. There is no dispute that in the meeting held on 13th August, 1999, the Executive Committee of the Central Board of Trustees decided that the Central Civil Services (Recognition of Service Associations) Rules, 1993 would apply to the Employees Provident Fund Organisation. A circular in respect thereof was issued in the year 1999.

So far as the matter of keeping the same in abeyance is concerned, no decision of the Central Board of Trustees or its Executive committee or any communication of the Government in this behalf has been placed on record. A mere reference in an intra - departmental communication cannot, therefore, be treated as a decision whereby it had been decided to keep the applicability of the Central Civil Service Rules in abeyance.

The petitioner has unequivocally admitted that the executive committee of the Central Board of Trustees has resolved on the 13th August, 1999 to adopt the CCS Rules, 1993. There is no legally tenable challenge to this decision of the Central Board of Trustees. No decision to the contrary has been placed before this court. The communication dated 19th April, 2000 relied upon by the petitioner vaguely refers to the same having been deferred. From the assertions of the petitioner and the respondents, it is evident that the decision to adopt the CCS Rules was actually taken by the Executive Committee of the Central Board of Trustees of the Employees Provident Fund Organisation in its meeting on 13th August, 1999. Only its implementation was not effectuated till issuance of the circular in August, 2003.

The communication dated 19th April, 2000 relied upon by the petitioner, has requested the government to place the same matter before the Executive Committee of the Central Board of Trustees. A decision to adopt these rules already having been taken in the year 1999, in my view there was no necessity for having the same placed before the Executive Committee once again. The decision once taken would stand till such time it is superseded, revoked or set aside.

This is more so in the light of counter affidavit which was filed by the petitioner as well as the Employees Provident Fund Organisation while defending the writ petition in the High Court of Judicature at Kerala. The check off system for verification of membership was requisitioned by the present petitioner itself in the communications addressed to the respondent as well as the counter affidavit filed in the High Court of Kerala. The petitioner does not dispute that it was in receipt and in full knowledge of the circular issued in respect of the membership verification which was undertaken by the respondents. It not only accepted the validity thereof but also participated in the membership verification process by the check off system in as much as its Secretary duly submitted all authorisation letters of its claimed members with the respondents. No protest was lodged, nor any complaint or representation made objecting to the implementation of the check off system by the petitioners to the respondents or any other authority. It is only after the result of the membership verification by the check off system has become known that the petitioner has come up with the objections taken by way of the present writ petition.

In my view, the respondents do not need to invoke principles of res judicata in so far as their contest to the writ petition is concerned. The petitioner is clearly estopped from raising the objection which has been raised by it with regard to the membership verification which has been undertaken by the check off system. (Ref:- Ishwar Dutt Vs. Land Acquisition Collector and Another,

In support of this statement that the judgment of the High Court of Kerala constitutes res judicata against all the parties, reliance has been placed by the Wali Mohammed (dead) by Lrs. Vs. Smt. Rahmat Bee and Others, and State of U.P. Vs. Nawab Hussain, there can certainly be no dispute to the principles laid down by this judgment. However the same would equally bind the present petitioner so far as the findings on facts are concerned.

So far as the challenge made by the petitioner is concerned, it has been urged before this court that there is no estoppel against statute and it is open to the petitioner to urge that the CCS Rules do not apply. It has been stated that such a challenge can be made even if the petitioner had contended before the High Court of Kerala that the Code of Discipline applied.

This contention of the petitioner has been considered in detail on the factual matrix and it has been as a fact found that the respondent no. 2 had resolved on 13th August, 1999 that the CCS Rules would apply. For this reason the plea raised by the petitioner would be of no consequence.

The respondents have asserted that Employees Provident Fund Organisation had adopted the Central Civil Services (Recognition of Service Associations) Rules, 1993 in compliance with the provisions of Section 5-D (7) of the Employees Provident Fund & Miscellaneous Provisions Act, 1952. The respondent no. 2 had directed all Regional Provident Fund Commissioners to implement the applicability of these rules by a circular which was issued as back as on 3rd December, 2003. The petitioner has relied on these circulars in the defence taken by it to the writ petition filed by respondent no. 4 at Kerala. It has asserted positively that it was given recognition under the provisions of the Central Civil Services (Recognition of Service Associations) Rules 1993. Having taken such a categorical stand, the petitioner is bound by and must abide by the result of the membership verification which was undertaken in accordance with the provisions of the very rules under which the petitioner was admittedly given recognition. In case the rules are not applicable, then on the own showing of the petitioner, it could not have been given any provisional recognition.

It is noteworthy on the basis of the deposition of the present petitioner and the respondent no. 2, the High Court of Kerala refused to grant any relief to the respondent no. 4 which was the petitioner herein who was the respondent no. 4 in those proceedings.

An issue has been raised by the respondent no. 4 as to the legality of provisional recognition. It has been contended that there is no provision for the same and no such provisional recognition could have been given to the petitioner. In the light of the view which this court has taken, this issue is left for adjudication in any appropriate proceedings.

In view of the discussion and observations herein contained, the challenge to the membership verification by the check off system pursuant to the method which has been provided under the CSS Rules, in my view, is only misconceived and must fail.

The other ground of challenge is laid on the provisions of the Industrial Disputes Act, 1947. It has been contended that membership verification can be undertaken only by the Central Labour Commissioner under the provisions of Sections 3 & 36 of the Industrial Disputes Act, 1947. The submission on behalf of the petitioner is that the Employees Provident Fund. Organization is an industry in view of the clear provisions of Section 2(j) & 2(a)(i) of the Industrial Disputes Act, 1947.

The only ground for asserting that the Central Civil Service (Recognition of Staff Associations) Rules, 1963 would not apply and only the Code of Discipline can apply to the respondent no. 2 organization, is based on the petitioner''s contention that the respondent no. 2 is an industry. In this behalf, reliance has been placed on the provisions of Section 2(a) of the Industrial Disputes Act, 1947. Reliance has been placed on pronouncement of the Apex Court in Agricultural Produce Market Committee Vs. Shri Ashok Harikuni and Another Etc., The petitioner has also placed reliance on Sections 3, 36-B of the Industrial Disputes Act, 1947 to point out that the Central Board of Trustees of the Employees Provident Fund Organisation has been specifically mentioned in the statute and that no exemption has been given from the applicability of the provision thereof. For this reason, the petitioner has contended that the Code of Discipline was the only guideline which stands apply for the purposes of recognition of associations and verification of membership has necessarily to be undertaken thereunder.

From the narration contained in the resolution passed by the Central Board of Trustees in the 60th meeting on the 7th November, 1973, it appears that so far as the issue of whether the EPFO is an industry or not is concerned, in a judgment passed in Civil Revision Petition No. 586/1973 entitled Shri Mari Swamy v. The Registrar of Trade Unions in Mysore, the High Court of Karnataka had held that the EPFO was an industry.

This matter was taken in an appeal by way of SLP before the Apex Court which issue is still pending.

It is noteworthy that this very petitioner before the High Court of Kerala had taken a stand that the EPFO was not an industry.

The reliance placed by the petitioner on Section 36 of the Industrial Disputes Act, 1947 is also misconceived. The statutory provision only mandates that a workman who is party to an industrial disputes shall be entitled to be represented in any proceedings under the Act by members of a registered trade union of which he is a member. The Article 19(1)(c) recognises the right of individuals to form a trade union/association. There is no dispute that the petitioner is a registered federation. Its rights under the Trade Union Act have not been impacted in any manner whatsoever. Therefore, the challenge to the action of the respondents in the instant case on account of the provisions of the Industrial Disputes Act, 1947 is wholly misconceived.

It has been noticed above that the petitioner has claimed that it was given provisional recognition under the provisions of the Central Civil Service (Recognition of Service Associations) Rules, 1993. These rules were adopted by the Executive Committee of the Central Board of Trustees of the Employees Provident Fund Organization in its meeting held on 13th August, 1999. The petitioner has not challenged the grant of this recognition under the very rules under which membership verification has been undertaken. It was the petitioner who was continuously requesting that its membership be verified by the respondent by adopting the check off system for the same which is provided under the CCS Rules. It has been held that the petitioner having accepted the validity of the implementation of these rules, having placed reliance on the provisional recognition which was given to it under these very rules and having participated in the membership verification process under these rules, cannot object to the process of the membership verification.

There can be no dispute to the proposition that there is no estoppel against the statute or statutory rules. However, in the instant case, the petitioner has set up a case that it was given recognition under the very rules under which the membership verification has been undertaken. It is equally well settled that the statute and the rules have to be applied in its entirety and no party can be permitted to place reliance on a part of the statute or the rule under which it derives benefit and challenge the applicability of that part of the statute under which action has been taken to which the party is objecting. In case it were to be held that the membership verification could not be effected by the check off system permitted by the C.C.S. (Recognition of Staff Associations) Rules, 1993, as a consequence, it would have to be held that these rules were never adopted or applied. Consequently the petitioner could not have claimed any right to the provisional recognition which, as per its own admission, has been granted under these very C.C.S. Rules.

The petitioner has repeatedly asserted a claim of having membership of a certain percentage of the staff members of the respondents. It sought verification of this percentage. There is no dispute that whether under the Code of Discipline or under the C.C.S. (Recognition of Staff Associations) Rules, 1993, a union/association of staff members, in order to be recognised, was required to enjoy membership of certain specified percentage of employees. Therefore, undoubtedly, no association could claim entitlement to a recognition unless it was confirmed that it had such percentage.

The petitioner had repeatedly requested the respondents to verify the claim laid by it. It was at the request of the petitioner that the respondent resorted to the check off system for this membership verification. The petitioner uncomplainingly and without any demur participated in this entire exercise. No objection in the method adopted or the employees covered was ever taken. The respondent having abided by its request, the petitioner cannot complain if the respondents abide by the result of the exercise to verify the membership.

The membership verification, as per the counter affidavit filed by the respondent no. 2 before this court, was undertaken from February, 2004 to July, 2004. The petitioner had ample opportunity of educating its members from 2nd July, 2003 when it was granted provisional recognition till 31st July, 2004 when the check off system was implemented. The respondents have denied that only 3 out of 21 regions implemented the check off systems. It has further been stated by the respondents that the petitioner federation has membership in all the groups that is the group B, C & D. The respondents have also asserted that in the regional office, Tamil Nadu, sizeable number of staff members have withdrawn their membership from the union which was affiliated with the petitioner federation and for this reason, may not have opted for the check off system. In any case, these are pure questions of fact. This court has examined the two issues of legal principles which have been raised by the petitioner. It is not open to this court to go into the intricacies of the factual assertions relating to the number of staff members who are members of the petitioner. In any case, the petitioner has made vague allegations with regard to its strength and support without any material in respect thereof placed before the court.

The petitioner has also assailed the implementation of the check off system on merits as well intending that it had staff belonging only to only ''C'' & ''D'' category whereas the staff in other categories has also been clubbed. This has been disputed by the respondent no. 2 which has pointed out that the petitioner had staff belonging to other categories and that both the petitioner and respondent no. 4 had staff belonging to group ''B'', ''C'' & ''D'' as members. In any case, no such objection was taken by the petitioner when the respondent no. 2 issued the letter dated 26th February, 2004, 8th March, 2004 as well as the order dated 6th August, 2004 effectuating and implementing the membership verification by the check off system. On the contrary, it supported this exercise before the High Court at Kerala and has made all these grievances after having failed to support its claim of membership. Such challenge is clearly impermissible.

Under the Code of Discipline, the trade union claiming recognition was required to cover only 15% of the workers. From a perusal of the above, it is apparent that the present petitioner had made its representation dated 24th December, 2002 stating that it has more than thirty five per cent membership also on the basis of the condition for recognition as laid down in Rule 5(d) of the Central Civil Services (Recognition of Service Association) Rules, 1983.

It is noteworthy that in order to be considered for grant of recognition under the Code of Discipline, the union/federation is required to accept the Code of Discipline in the industry in the form annexed as Appendix ''A''. The petitioner has nowhere stated either in its counter affidavit before the High Court of Kerala or before this court that it had satisfied the requirements laid down under the Code of Discipline or that it had given a declaration that it was abiding by the Code of Discipline. The petitioner not having satisfied thus requirement under the Code, could not have been considered for recognition under this Code.

The respondents have assailed the grant of provisional recognition to the petitioner vehemently urging that there is neither any statutory provision nor any policy for grant of provisional recognition to any trade union and that the grant of such provisional verification to the petitioner without verification of its membership claims by the concerned Minister on 2nd July, 2003 was illegal and without jurisdiction. It has further been urged that for this reason, the petitioner has no sustainable legal right and the writ petition deserves to be rejected.

The petitioner however has urged that this plea of the respondents is barred on principles of res judicata inasmuch as the grant of provisional registration to it has been upheld by the High Court of Kerala.

The petitioner in the present petition has taken a stand totally contrary to it to the stand taken in the writ petition which was filed before the High Court at Kerala. In fact, while the petitioner placed reliance on the Central Civil Service (Recognition of Service Association) Rules before the High Court at Kerala, before this court it has taken a stand that those rules have no application and it is the Code of Discipline which is to govern the matters relating to recognition of trade unions.

As noticed hereinabove, the High Court of Kerala accepted the plea of the present petitioner that it had been given recognition under the Central Civil Service (Recognition of Service Association) Rules and consequently has found against the petitioner therein on the merits of the challenge. Examined from this angle, certainly, the challenge by the petitioner in the present proceedings would also have to be held as wholly misconceived on this basis alone. The petitioner had not been able to support the grant of provisional recognition by the then Minister to it under any authority derived from any statutory provisions, rules, regulations or any policy.

A challenge has been laid by the petitioner that it was unaware of the action of the respondents. In this background, in view of the decisions taken by the EPFO in the meeting held on 13th August, 1999, which hitherto had not been implemented, it was decided to effect the membership verification by the check of system as laid down in the CCS Rules, 1993. The circular dated 26th February, 2004 issued by the respondent no. 2 to all officers of the country enclose the rules for the check of system. The petitioner and its members all received this circular and submitted respective options which were duly counter signed by the representatives of the union/association. Options were called as back as in February, 2004 and the check of system was implemented simultaneously in all regions in the month of July, 2004. The petitioner accepted the validity of the system and endorsed the same on affidavit before the High Court of Kerala it participated in the membership clarification. Thus the submission by the petitioner that it was not aware of the implementation of the check of system is only a misrepresentation.

The petitioner before the High Court of Kerala has specifically pleaded that its claim of more than 35% membership in the All India level could be verified and revealed if same is effected and based on the check of system in pay rolls. The entire challenge to the implementation of the check of system on grounds of the same not being efficacious is wholly misconceived when viewed against the stand of the petitioner in the previous writ petition. The present petitioner was conscious of the membership verification which was to be effected pursuant to the grant of provisional recognition to it on 2nd July, 2003. The check of system for verification of the membership was effected more than a year after on the 31st of July, 2004.

An argument has been addressed before this court that Section 5D (7) of the Employees Provident Fund mandate prior approval of the Central Government before the rules applied to the respondent no. 2. This statutory provision merely provides that the conditions of service of the employees of the organisation would be governed by the same rules as applied to employees of the Central Government. It is only in the event of departure therefrom that prior approval has to be taken from the Central Government.

So far as respondent no. 2 is concerned, the decision which has now been implemented is the decision taken in August, 1999 that the Central Civil Service (Recognition of Service Association) Rules, 1993 would govern matters relating to recognition of the trade unions and related matters. There was no departure from the rules which apply to the Central Government and consequently, there was no prohibition u/s 5D of the statute to implement the same. I therefore find that there was no prohibition in fact or in law to implementation of the decision taken by the respondent no. 2 on 13th August, 1999.

Verification of membership of a trade union is taken either by the check-off system or by a secret ballot. The check off system is provided not only in the Code of Discipline and the CCS Rules, 1993 but is also a recognized method of verification of the membership. (Reference D.K. Chhangani and others Vs. Nitya Ranjan Mukherjee and others, Karnataka State Road Transport Corporation Vs. KSRTC Staff and Workers'' Federation and Another

It is an admitted position that the petitioner has taken two totally contradictory stands. One in the proceedings before the High Court of Kerala and another before this court. The petitioner has also concealed the fact that it has actively participated in the membership verification undertaken between the February, 2004 and July, 2004 by the respondents. In this behalf Mr. Sanjay Parikh learned counsel appearing for the respondent no. 4 has urged that the claim made by the petitioner with regard to its membership and the provisional recognition which was granted to it was based on a misrepresentation and was a false and fraudulent claim. Reliance in this behalf has been placed on the pronouncement of the Apex Court in Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and Others, wherein it was held that fraud is a conduct either by letters of words which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. In this case it was even held that although negligence is not fraud but it can be evidence on fraud. There is certainly substance in this objection taken by the respondent no. 4.

In view of the above I find no merit in this writ petition which is hereby dismissed with costs of Rs. 30,000/- to be shared between the respondent no. 2 and the respondent no. 4.