Point of Law : The company being an industrial establishment as a whole as discussed earlier, the departments comprising the company cannot be distinguished as factory and non factory for the purpose of section 28A of the Act of 1926.

JUDGMENT :

SUVRA GHOSH, J.

1. The petitioner is a Trade Union registered under the Trade Union’s Act, 1926. The contention of the petitioner is that the fourth respondent which is the CESC Limited is a big company having several departments including factory and non factory establishments. The fourth respondent, in its notice dated 01-04-2021, has declared the generating stations, garage, workshop and testing departments as factory establishments and provisions of chapter - III - A of the Trade Unions Act, 1926 is applicable to these departments only. Placing reliance upon section 2 (ka) and 25A of the Industrial Disputes Act, 1947 which define “industrial establishments”, learned counsel for the petitioner has submitted that only factory establishments fall under such definition and other establishments do not come under the definition of factory under section 2(m) of the Factories Act, 1948. The petitioner has alleged that respondent no. 2 who is the Registrar of Trade Unions issued notice to other functioning Trade Union in Form – J intimating the application filed by respondent no. 8 for recognition as a recognised Trade Union in M/s. CESC Limited. Notice of election in Form – N was issued on 01-09-2021 upon all the Trade Unions for determination of the question of recognition. Learned counsel for the petitioner has drawn the attention of the court to the draft electoral rolls and has submitted that out of 6418 voters in the rolls, only 1059 are employed in the departments classified as “industrial establishments” and the other workmen are employed in non industrial establishments. Challenging the notice of election, learned counsel submits that the notice is in contravention to chapter – IIIA of the Act of 1926 as it includes workmen who are employed in non industrial establishments of the company. The petitioner filed an objection before the authority on 09-08-2021 and without disposing of the said application, draft electoral rolls has been published on 01-09-2021. The election is due to be held on 05-10-2021.

2. The prayer of the petitioner is two fold – (I) Prohibiting conduct of election for recognition of registered Trade Union including departments which do not fall within the ambit of industrial establishments under chapter – IIIA of the 1926 Act, and (II) Prohibiting conduct of elections during this pandemic times.

3. Vehemently opposing the prayer of the petitioner, learned counsel representing respondent no. 8 has submitted that CESC Limited comprises several departments under a single employer. The election is necessary to establish the majority of this respondent and there is no dispute with regard to the fact that CESC Limited is one single unit. The ownership, management, control, finance, etc., are integral parts of the company. Learned advocate has placed reliance on the judgment in Associated Cement Companies Limited, Chaibassa Cement Works, Jhinkpani v/s Workmen reported in (1960) 1 SCR 703 which deals with specific tests for determining the term “One Establishment”. The Hon’ble Supreme Court, in the said judgment, has observed that the test to determine whether an industrial undertaking having branches, departments and units in different locations comprises a single establishment is the true relation between the branches, units etc.. When one unit is a feeder of another and there is unity of ownership, management, supervision, control, condition of service and the like, all the units come under the umbrella of one establishment. According to learned advocate, CESC Limited is undoubtedly an industrial establishment and there is no irregularity or illegality in the election notice issued by the second respondent. The second limb of argument canvassed by learned counsel for respondent no. 8 is that it is a fact that the entire world has been undergoing an extraordinary situation due to the pandemic. Nevertheless, normalcy is being resumed gradually in all walks of life including holding of elections, reopenin