ORDER
A.M. Bhattacharjee, J.
1. I have considered, and agree with, the judgment and order of brother Ray.
Ajov Nath Ray, J.
2. The appeal is directed against Justice Suhas Chandra Sen’s Judgment and Order dated 7th May, 1991, which was passed on a remand order of the Supreme Court, dated 10th January, 1990, in the following terms:–
“Leave granted, Counsel heard,
Although the suit was filed with leave obtained under Order 1, Rule 8 C.P.C., no advertisement has been given up till now and the impugned order of the Division Bench of the High Court was passed several months after the suit was filed during which there was ample opportunity to give advertisement. In those circumstances, we set aside the impugned order and direct the High Court to decide the matter afresh after giving an opportunity of hearing to all parties who are likely to be affected. Necessary steps for advertisement shall be taken by the plaintiffs in the suit, who are the respondents before us, of the filing of the suit as well as hearing of the application by advertisement published in daily newspaper “Statesman” and “Anand Bazar Patrika” within ten days from today.
There shall be an interim stay of holding of the elections. There shall be an interim order that the Circle Committee functioning before June 4, 1989 shall function as ad-hoc committee subject to the restrictions imposed by the orders dated 29th June, 1989 and 28th September, 1989, the Ad-hoc Committee shall not spend more than Rupees twenty five thousand per month and the Ad-hoc Committee shall cease to function as soon as the new Circle Committee is duly elected.
The appeal is disposed of accordingly. There shall be no order as to costs.”
3. Though counsel for the appellants and the supporting respondents, that is Mr. P.C. Sen, Mr. S.B. Mookerjee, Mr. S. Pal, Mr. Anindya Miner and Miss Chatterjee (in the order they addressed us) had some difficulty in understanding the exact effect of the Supreme Court Order, I was not much able to appreciate those difficulties. Clearly the elections of 4th June, 1989 had been set aside, due elections in their place were to be held, and those were to be held subject to the Order to be passed by the High Court on remand, after advertisements, on afresh consideration of the matter in the interim period the committee prior to the invalidated elections would function with indicated restrictions; the terms of remand are unrestricted, and the oretically, the High Court could, on a fresh consideration, even hold the 4th June elections to be valid if that appeared to be just, legal and reasonable on hearing the appearing parties after advertisement.
4. The elections relate to the Bengal Circle of the Trade Union of the State Bank workers. The union was established in 1920 and its present strength is about forty thousand (40,000). There are seven circles, each circle being composed of units. A bank branch is an example of a unit. The units elect unit-delegates to the circles. The circles elect circle delegates to the central general council as well as members of the circle committee. The central body elects the central committee and has plenary powers including rule changing powers.
5. The rules were amended substantially in the 1986 Patna Conference of the central general council. A principally two tier unit-centre scheme was changed to the above three-tier scheme. Biennial meetings and elections were changed to triennial ones. When the suit was filed in May 1989, the first triennial circle council meeting of the Bengal Circle (composed of about 550 unit delegates) was scheduled to be held on 4th June, 1989.
6. The notice of the meeting had four agenda (Paper Book, Volume I, page 137-page 272) out of which the third was a cause of concern to the plaintiff unit-delegates. This agendum was the election of 50 circle-delegates and 45 Circle Committee members. The plaintiffs had earlier written for laying down procedures for holding elections worth the name. They wanted a list of voter unit-delegates, identification systems, nomination paper filing systems and, above all, voting by secret ballot instead of by show of hands. The rules are silent as to all these matters. The plaint mentioned the show of hands voting as the principal obstacle to a democratic election; pandemonium and unfree and unfair elections were apprehended.
7. With all due respect to the draftsmen, the plaint (Paper Book, Vol. II/1-32) is not exactly a masterpiece. The first interlocutory petition filed in May 1989, (p.b. II/130-141) was, excluding the long cause-title, only a four page one. The putting of the case was sketchy. But, although clumsily, the plaintiffs had touched a sore spot.
8. This Trade Union is not now (or, charitably, yet) a clockwork organization. Litigation is far from being unknown. The first triennial meeting of the central general council has not been held, though, they were due for 1989. There is litigation there also. Not all the litigation has surfaced in the papers before us.
9. The spot is sore because, as later events showed, the plaintiffs’ fears of pandemonium and absence of free elections were justified. Pursuant to orders of the first Court and the Division Bench (first Court, 18-5-89; p.b, I/138; Division Bench on 19-5-89 at p.b. I/27), special observers were present on 4th June. They were to ascertain, on a show of hands, whether the Bengal Circle wanted the agendum to be voted by show of hands, or secret ballot. Their counting on this self-determination procedure was to be final.
10. They fled the meeting in bodily fear. Before that they had endured speeches for about ten hours. Their written report is on record (p.b. I/42-55). They say that they were intimidated and were forced to sign a chit written out by the President (chit copy at p.b. I/144) which showed, according to them, wrong results. Their own counting of 254 delegates (a clear majority) in favour of secret ballot was not accepted by the President. After the observers left, the meeting of 4th June is supposed to have been conducted on a show of hands in clear violation of the Division Bench Order of 19th May, 1989 (see esp. cl. 7, p.b. I/28) which had given the special observers the final right to decide on their own counting whether the majority wanted a vote by secret ballot.
11. Therefore, the applicants seek protection against what amounts to jungle law.
12. After the meeting the applicants applied in June, 1989 before the Division Bench (petition at p.b. II/142-174) for setting aside the elections and holding of fresh elections. By consent (see p.b. I/31 bottom) the procedure of testing the facts was laid down by the order of 29-6-89 as the one of calling for affidavits from the attending delegates. Four hundred and sixty six affidavits were filed and 265 slated that they had voted for secret ballot. Incidentally, the President of the meeting had written out in the chit that this very same number of 265 had voted in favour of show of hands. The affidavits were counted by the Registrar of the Court (Registrar’s report at p.b. I/56-57). The Secretary of the first appellant said that (see his affidavit p.b. I/98/at 117) a good number of the deponents affirmed false affidavits where they said they had voted for secret ballot. The Division Bench was not persuaded. After passing another expenditure limiting interim order on 28-9-89 (p.b. I/159), the elections were set aside by the order of the Division Bench dated 29-11-89 (p.b. I/58-92). This Order was set aside by the Supreme Court.
13. Mr. Mookerjee asked how the supporters numbering 254 as counted by the special observers could increase to 265 when affidavits were called for. He also asked why the special observers’ report should be filed 17 days after the meeting. With the greatest of respect, these are not substantial questions, and do not do any credit to the merits of the case of the appellants, or of the supporting respondents.
14. Justice Sen’s Order (7-5-91) seeks to render protection in the following (in my respectful opinion, substantially correct) manner :–
“Under these circumstances, the purported election of the General Council (sic) of Bengal Circle Committee and Delegates to the General Council held on 4th June, 1989, must be and is hereby set aside. The following order is passed :–
“(a) Mr. Ranjit Mitra and Pinaki Ghosh, Advocate are appointed Special Officers for the purpose of holding election of the General Council, (b) Election must be held by secret ballot, (c) These Special Officers will hold the election on the basis of the list of delegates submitted by the Special Observers appointed by the Court along with their report and this shall be taken to be the authenticated list of delegates which shall only be operative for holding the election. Vacancy, if any, caused by way of promotion, death, transfer, resignation or otherwise, shall be filled up according to the Rules of the Association.
The election shall be held on before 8th July, 1991. The time and place of the election will be decided and notified by the Special Officers. The Special Officers, will ensure that (the) free and fair election takes place. If necessary, the Special Officer will be empowered to seek police help and assistance for the purpose of holding this election. The police authorities are directed to render all possible help and assistance to the Special Officers.
The Special Officers will be paid remuneration of 300 G.Ms. each. Costs charges and expenses of holding election as well as other incidental expenses and the remuneration of the Special Officers will be paid by the State Bank of India Staff Association, Bengal.
Interim orders passed by the Appeal Court on September 28 (15), 1989 and continued by
the Supreme Court will continue but the
expenditure for holding the Election, as
directed hereinabove, will not come within
the ceiling on expenditure imposed by the
Appeal Court and confirmed by the Supreme
Court.
There will be no order as to costs. Liberty to apply. Stay of operation of the order passed in this judgment asked for by Mr. Chowdhury, Advocate is refused.
Special Officers and all parties shall act on a signed copy of the operative part of the order of this judgment on the usual undertaking.”
15. The appellants and supporting respondents object on the following main points:–
1. The twentieth Rule (20) of the union provides for a decision on all questions where rules are silent by the union committees; the appellants must take recourse to this domestic remedy. A suit which sidesteps it altogether is bad.
2. There is no right to claim a Voting procedure of any particular type, e.g., a vote by secret ballot; on the other hand a vote by show of hands prevents vote purchase (it was called horse trading) and acts like a party whip.
3. 4th June, 1989 being a past date, the suit is a dead suit, (it was called, I cant help mentioning, a dead horse) the claims in the plaint being strictly limited to that single meeting, which has since already been held, to whatever effect.
4. The application ordered upon by Justice Sen is not the original remanded application, but a second new one.
5. The application advertised as per the Supreme Court Order was also only the second one.
6. On remand, the matter should have been heard by the Division Bench, whose order was set aside.
16. I take the objections in the reverse order. The sixth objection is a technical one only. Moreover, the Supreme Court Order having set aside the Division Bench Order of 29-11-89, in which the trial Court Order of 18-5-89 had merged, the position was as if the original application remained undisposed of. As in a newly presented application, the first Court was thus quite the proper one to hear it.
17. Regarding the fourth and fifth objections, it will be seen that the remand order of the Supreme Court (dt. 10-1-1990) came after the election date, (4th June, 1989) and as such the original application (p.b. II/130-141) of May, 1989, which was remanded, needed the bringing upon record of the vital subsequent events. This, in effect, was done by way of the second application taken out in February, 1990 (p.b. I/1-24). Newly framed prayers were also there as the purported 4th June elections were now rendered ineffective by the Supreme Court Order. If any authority is needed for the proposition that the Court is not to shut its eyes to vital subsequent events, the same can be had from Pasupuleti’s case, .
18. An advertisement of the suit along with second application (see p.b. I/163-the print is difficult to read) was quite proper. The advertisement of the first application, on the other hand, would have been a deceptive act.
19. The first application only prayed for quia timet Orders, praying mainly for conduct of a future election. Then, after the elections were held, the plaintiffs began praying for setting aside of the results and fresh elections. They did this before the Division Bench and they effectively achieved this in the Supreme Court remand order. To advertise the quia timet prayers of the plaint and the first application would clearly be a suppression from prospective parties willing to appear in the proceedings, of what the real prayers before the Court were now going to be. Nobody can have any doubt that the first application has become infructuous in view of the second application made and the Order made thereon upon a fresh consideration.
20. I cannot find any good reason to uphold the ancillary argument that the plaint should have been amended to bring on record the subsequent events. These events are further evidence justifying the apprehension alleged in the plaint. The first triennial Bengal Circle meeting has not yet been properly and fully held in that the third agendum is still to be properly voted upon. The plaint is alive as it is and needs no amendment. The date 4th June, 1989 mentioned in the plaint was both prospective and merely descriptive at the date of suit (18-5-89), and its passage is not, in the circumstances, much material. This takes care of the third objection.
21. In this view of the matter the case of Nair Service relied upon by Mr. S. B. Mookerjee, , does not help the case of the appellants much; as decided in that case, ordinarily speaking a suit or an appeal is limited to the cause of action pleaded; subsequent events may justify an amendment of the pleading so as to bring in the cause of action as affected by subsequent events. Here, however, the cause of action of apprehended pandemonium and chaos at the elections of the first triennial Bengal Circle meeting remains unaltered. Thus, an amendment of the plaint is not necessarily called for. So far as the application is concerned, the second one does bring on record all necessary facts.
22. The second objection is basic. What are the rights of a Trade Union voter?
23. A Trade Union is registered under the Trade Unions Act, 1926 by tender of application and rules to the Registrar, in the same scheme as a Society or a Company. The appellants argued that the rules form a contract amongst members and though these rules are registered under statute, they themselves do not acquire any statutory character by such registration. This is quite acceptable.
24. The rules, say the appellants next, give no right to vote by secret ballot. How can the plaintiffs import such a right in the rules? It would be like importing a new term, in a written contract.
25. The answer is that in contracts of this nature, the Court implies certain terms. For example, it implies a term that expulsion cannot be ordered by a procedure unfair and unjust or by passing an order in breach of the rules of natural justice. In T.P. Daver’s case, , Justice Subba Rao, speaking for a four-Judge Bench, did not expressly talk of implication of terms of fair play in the contract, being the rules, of a lodge, yet this could not but have been meant when his Lordship said at the end of the eighth paragraph (p. 1147, left Col.) :–
“… the party, who has found himself by those rules, cannot complain, unless the enquiry parsuant to such rules discloses mala fides or unfair treatment.”
26. Again, in the sixteenth paragraph, while warning that the rules of natural justice will not apply with such vigour to the ‘rule-contracts’ (my phrase), his Lordship still did imply the legal importation of these principles of natural justice in the ‘rule-contracts’ even if those were not expressly mentioned (at p. 1149, right Col.):–
“The rules governing tribunals and Courts cannot mutatis mutandis be applied to such bodies as lodges. We have to see broadly in the circumstances of each case whether the principles of natural justice have been applied.”
27. Thus, even if the rules or bye-laws do not provide for the observance of the rules of natural justice before an expulsion, the Courts will imply them in the contract, which is the body of rules or bye-laws. In the same manner, the Court must imply a term in domestic electoral matters, that the elections shall be elections true and proper, and not something else. Indeed, suppressing the electoral process by power or overbearing conduct is another instance of unfair treatment.
28. There are three basic requirements of an election :–
(i) the voter must be physically allowed to cast his vote according to his choice;
(ii) only eligible voters will vote;
(iii) the votes shall be counted accurately.
29. A substantial breach of any one of these three conditions robs the purported election of the essence. I have no hesitation in saying that wherever there are bodies wherein men have agreed by rule-contract to hold elections for choice of body-representatives the Courts shall imply the above three essentials as agreed upon by the men as if the same had been put down separately as an independently agreed term of the contract, whether in the shape of a rule or a bye-law.
30. On this basis the plaintiffs have a right to call for ballots as otherwise, they are apprehensive that their very right to elect will be lost. As I have said, the plaint does not make ail this explicit; but then again, how could it, for, frankly speaking, we are treading fairly new ground in law. But the plaint is not totally silent. For example, in paragraphs 18 to 23 (p.b. II/17-22) sufficient-allegations have been made, which, if true, would justify the interference of the Court.
31. Much was said about the virtues of voting by show of hands. The unit electorate, it was said, would know how their electees were voting. The similarity with as high a body as our Parliament was sought to be pressed into service. There may be some truth in all this. It is possible that adverse voting, if known, may be the subject of a future course of party (or individual) action. We cannot judge today whether vote purchase will be or Will not be a substantial evil be setting a secret ballot. But we have also got to prevent chaos and coercion at the meeting. The only course is to order a ballot voting, to be conducted in the manner of usual ballot votes. Each ballot must contain a specific number, and though the voting will be in every manner secret, the Special Officers shall keep a record as to which voter used the ballot paper bearing which number. As the larger prayer includes the lesser, a claim for secret ballot can very well legally result in an order for ballot only, which shall not be kept so secret, as not to permit of results being known, even if a case for scrutiny arises, for some reason, in the future.
32. A point about remedies. The Court assumes jurisdiction in these rule-contract cases because they are contracts, and over contracts and contracting parties Courts have jurisdiction. But there are contracts and contracts. Not all breaches of all contracts call for the same remedies. Money is a remedy, specific performance is a remedy. In rule-contract cases remedies do not take this ordinary classical form. They take the shape of cancellation of an expulsion order, or a declaration of invalidation of a meeting resolution these are the usual remedies in rule-contract cases though these would be thoroughly unusual in ordinary contract cases. Of course, damages may also be awarded in case of breach of union bye-laws. Mr. Jayanta Mitter for the respondents relied on Clarke’s case, (1985) 1 All ER 211 and Mr. S. Pal relied (in another context — ‘rule silence’) on Bonsor’s case, (1954) 1 All ER 822 (C.A.); (1955) 3 All ER 5!8 (H.L.); these cases also illustrate the rule-contract remedies.
33. As to the first objection, let us see Rule 20 :–
“20. The Central Committee shall look after the general direction, Management and transactions of business of the union. It shall see that the rules of the union are correctly interpreted and shall be responsible for their due observances. It shall have power to decide all questions on which these rules are silent and its decision shall be effective until the next meeting of the General Council. The Circle Committees at the levels and jurisdictions of the respective Circles shall have full powers as are vested in the Central Committee and the decisions of the Circle Committees shall remain in force unless the decision is altered or rescinded by the Central Committee/ Working Committee”.
34. Indeed if there is an interim decision in accordance with Rule 20 that the Voting shall be by show of hands (as the rules are silent in that regard, and indeed, with regard to other basically important election matters like Voter list, voter identification, nomination procedure), the Courts cannot, contrary to the rules, direct an election by ballot. But the Courts can, and will, invalidate all elections held by show of hands if it is established that any one of the above three essential ingredients of the election was so substantially lacking as to have materially affected the election results.
35. But here there is no interim decision of the Circle Committee, let alone the Central Committee. Letters by many applicants (see p.b. II/59-107) requesting for setting up election procedures including election by ballot remained thoroughly unproductive. The plaintiffs became unit electees in February, March ’89 and became active immediately. To no use. The then functioning Circle Committee (still functioning) did not take any positive decisions, and according to the plaintiffs, did not even allow the proposal of voting by secret ballot to be properly tabled (see affidavit of second appellant, Niranjan Chakraborty, and of para4(b) at p. b. II/203, 204; and plaint, para 18 at p.b. II/17-18; and notice of Circle Committee meeting dt. 28-4-89 at p.b. I/416) let alone take a decision on that.
36. The result of the above papers is this. On 28-4-89 a notice of meeting of the Bengal Circle Committee was issued (p.b. I/416). There was no agendum therein about method of voting or election procedures. There followed a spate of letters clamouring for these on 2-5-89 (p.b. 11/59-107). On 10-5-89 the Circle Committee met, but failed, in spite of request to take any positive decision on the election procedures or Voting method (p.b. II/17, 18, 203, 204). Immediately on the next day, i.e., on 11-5-89 the notice of 4-6-89 meeting was issued which contained (p.b. I/137) a generally worded second agendum for reference to the general council for rule-amendment. Finding themselves to be in front of shut-doors’ for every domestic remedy, the plaintiffs filed the suit on or about the 18th of May, 1989.
37. There being no decision, for any interim measure by the Circle Committee (assuming that they could so decide a matter affecting their own possible re-election at the very meeting in respect of which the decision was being taken) there arose no question of any appeal to the Central Committee. I think Mr. Jayanta Mitter for the respondents rightly argued that there being no decision under Rule 20 taken or allowed to be taken by the Circle Committee, they cannot take advantage of their own inaction, and cannot be allowed to argue that the suit stands defeated as a result of their not taking any positive decision in the matter.
38. In this light, White’s case cited by Mr. Sen, (1951) 2 All ER 435 (PC) does not retain much importance for the purposes of this case. 1 quite agree that a prior demesne remedy cannot simply be ignored, and a suit filed. It is also, in my opinion, the law that a suit can be filed if the domestic forum vested with the authority, exercises it illegally, or, fails to exercise it altogether thus abandoning its authority improperly. I pointed out to Mr. Sen that apart from all this, the rules in White’s case contained an express stipulation that no suit would be filed by a member unless he had exhausted the domestic remedies (see (1951) 2 All ER 435 at p. 438 B). Mr. Sen answered that the clause merely embodies what is even otherwise the general law. That may be; but I am quite clear in my mind that such exhaustion of prior remedies would be sufficiently complied with if the domestic body refuses to take up and positively to decide the matter, in spite of it being approached. In White’s case the appellate body (the federation) had not been called upon to deal with the appeal at all (see (1951) 2 All ER 435 at pp. 438 B, C and 442 A, B).
39. Mr. Sen said that the problem of voting by secret ballot is under consideration by the Central general council as per the reference made under the second unchalleged agendum in the very meeting of 4th June (see p.b. I/137 for notice; reference events at para 17 of petition verified by affidavit of the first respondent, p.b. II/160). He also says that an old Rule 15(c) was amended in 1981 by deleting the following words at the Lucknow conference (p.b. I/100):–
“The election shall be held by ballot if necessary”.
40. I find the above amendment to be remarkably equivocal and the litigation about its registration (by the registrar of trade unions) to be a matter of utter irrelevance to the present issues. The history of this litigation is on record (p.b. I/100-102).
41. As to the reference to the central general council, my opinion is that the pendency of a consideration of a general change of rules by the central general council cannot be any guide as to how the single, separate elections of the various sub-bodies will be conducted in the meantime. The domestic committees that could lay down procedures for such interim elections either failed or refused to exercise their power. Two of the objecting appellants (Nos. 2 and 3) got elected themselves at unit level by secret ballot and so did Gurudas Chatterjee, who has affirmed the affidavit for the first appellant (see plaint para 15, p.b. II/16; Gurudas works at Park Street Branch — p,b. 1/98, and Park Street Branch unit elected by secret ballot). It ill lies in their mouth to object to election by secret ballot. Mr. Mookerjee’s clients, the present chief and general secretaries of the Bengal circle (also called Calcutta circle) had written respectively in the years 1970 and 1985 in favour of ballot voting (see letters at p.b. II/57, 58; plaint paras 10, 10(a) at p.b: II/13). At the time of writing of the letters they were the then deputy general secretaries of the Calcutta Circle. No explanation was forthcoming as to why they had changed their views in relation to ballot voting over the years.
42. Regarding the list of voters prepared by the special observers, which has been
directed (see direction (c)) to be used by Justice Sen, I must say that none of the appellants or their supporting respondents even bothered to produce a copy of the same before us, nor could they point out any defect
therein, in the sense that they could not point
out a single name included therein which
should not have been included, nor could they
point out any single name which was wrongly
omitted from the said list.
43. Under the circumstance’s, for the third agendum of this meeting of the Bengal Circle, (being their first triennial meeting) it is quite proper that the same be held by ballot and under supervision of special officers, as ordered. Put in a single sentence, this is necessary for instilling confidence in the general body of the Bengal circle electorate that their right to elect cannot altogether be wiped out by an overbearing group in power in the teeth of clear orders of Court. It is clarified that only the agendum regarding elections of circle-delegates and Circle Committee members will be the subject matter of ballot voting. The date of elections fixed to be held as within 8th July is naturally to be extended and the same is to be held by 25-9-91.
44. Save as aforesaid the order under appeal shall remain unchanged, the same having been supported by 295 delegates appearing through three counsel, namely Mr. Jayanta Mitter, Mr. Gopal Chakraborty and Mr. Ranjan Deb, out of a total circle electorate strength of approximately 550 only.
45. It is unavoidable that in appeal from
an interlocutory order the suit itself will
practically be over. The second triennial
meeting is due in 1992. The first one initially
scheduled for 4th June, 1989 had better be
held now in so far as the important agendum
of election is concerned.
46. The order in appeal shall therefore be:–
(1) Save as stated below the order, under appeal is affirmed.
(2) In so far as direction (b) by Justice Sen is
concerned, the same shall remain as it is,
subject to the Clause (d) below.
(3) The election shall be held on or before Wednesday, 25th September, 1991.
(4) There shall be added a direction (d) to
the following effect:–
(d) The special officers will, ensure that the ballot papers contain different individual numbers and that the numbers are noted against names of the individual voter to whom the particular ballot paper is issued the publication of the election results by the special officers need not include publication of the ‘voter-ballot paper’ identification list, but the same shall be filed in the Court below, as well as ballot papers, along with the report of the election results; publication of results by the special officers shall be within ten days of the meeting, and the same shall be by way of a report, copies whereof shall be sent to the respective advocates on record of the appearing parties.
(5) It being an internal trade union group
dispute, there will be no order as to costs, in
the slender hope that it might help the cause of
harmony.
47.Order accordingly.