1. This writ petition is filed seeking a Mandamus declaring the action of the second respondent in issuing Letter No.B1/2376/2009 dated 15.12.2009 in not including the names of 147 Badli Workers to participate in the ensuing elections which is being conducted on 30.12.2009 as arbitrary, illegal and amounts to unfair labour practice and also violative of Articles 14 and 16 of the Constitution of India.

2. This Court, while ordering notice before admission on 23.12.2009, directed that proposed election may go on, however, the Returning Officer shall permit the petitioners and other Badli Workers to cast their vote, but their votes shall be kept aside.

3. The short question that arises for consideration, in this writ petition, is as to "whether the Badli Workers of an Industry are entitled to participate in the voting when verification of membership of the Unions is being conducted."

4. The relevant facts for disposal of the writ petition are that the petitioners are Badli Workers. According to them, there are 147 Badli Workers working under the control of third respondent from the year 2005 onwards. The petitioners and others have paid subscription and joined as members in fourth and fifth respondent Unions and have been paying subscription every month. While that being so, the second respondent issued a notice to conduct secret ballot election to determine the status of majority of Union, operating under the control of third respondent. The fourth and fifth respondent Unions have also made representations stating that the Badli Workers who are working for the last five years were not included in the voters list and they may be included for the purpose of their participation in the verification process. But curiously, on the basis of representation of third respondent that Badli workers are working in the place of permanent workers, therefore, their names were not included in the voters list, and as such the second respondent denied 147 Badli Workers to participate in the verification process. It is the case of the petitioners that a Badli Worker is also a worker within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and he can be a member of the Trade Union and therefore, not permitting the Badli Workers to participate in the Trade Union activity also amounts to unfair labour practice apart from being arbitrary and illegal.

5. In this regard, the learned counsel for petitioners relied upon the judgment in PANYAM CEMENTS EMPLOYEES UNION AFFILIATED TO INTUC V. COMMISSIONER OF LABOUR AND ORS. (2004(2) ALT 122) and drawn the attention of the Court to paragraphs 8 to 16 of the said judgment, which reads as under:

"8. The short question is whether badli workmen/employees are workmen for the purpose of the Trade Unions Act?

9. Section 2(s) of the I.D. Act defines 'workman' as under. (s) 'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express of implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or, as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

(i) who is, subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an Officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions, mainly of a manager