@JUDGMENTTAG-ORDER
1. This writ petition is filed by the General Secretary of Labour Progressive Federation. The prayer in the writ petition is for a direction to the Respondent State and the various State Transport corporations aligned as Respondents 2 to 9 not to entertain any trade unions except the Labour Progressive Federations for the duration of its recognition with respect to the grievances of the workers of the Respondents / transport corporations in relation to service conditions.
2. When the matter came up on 22.8.2011, this Court directed the learned Special Government Pleader to take notice for the first Respondent and notice was directed to serve on the other transport corporations. Though connected matter, i.e., W.P. No. 12609 of 2011 filed by the same Petitioner for the prayer not to withdraw or deprive the role of the Petitioner union and its privileges and the existing practices and not to promote the present 11th Respondent, i.e., Anna Tholir Sanga Peravai and its affiliates in the matter of duties and preparation of roaster for running crew and running technical and clerical cadres. It was reported that the said matter is pending before the another learned Judge. Therefore, it could not be tagged along with this writ petition. But, when this Court found that the Petitioner was seeking a direction against third party trade unions, it had observed that in the absence of those unions before this Court, the present writ petition cannot be adjudicated.
3. Mr. V. Prakash, learned Senior Counsel appearing for the Petitioner assured that he will instruct his junior counsel to implead all parties. Accordingly, M.P. No. 2 of 2011 was filed to implead Respondents 10 to 21, which are registered trade unions functioning in various State owned Transport Corporations. That M.P was ordered on 8.9.2011 with a direction to give private notice to those unions. Accordingly, while some of the served unions were represented by their counsels, there are other unions have not appeared either in person or through their union.
4. Heard the arguments of Mr. V. Prakash, learned Senior Counsel leading Mr. K. Sudalaikannu, Learned Counsel appearing for the Petitioner, Mr. S. Rajeswaran, learned Special Government Pleader for first Respondent, Mr. V.R. Kamalanathan, learned Standing Counsel for Respondents 2 to 9, Mr. R. Yashod Varadhan, learned Senior Counsel leading Mr. S. Muthuraj, learned counsel for 11th Respondent, Ms. Ramapriya Gopalakrishnan for 16th Respondent, Mr. S. Arunachalam, Learned Counsel for 19th Respondent, Mr. V. Ajoy Khose, Learned Counsel for 20th Respondent and Mr. R.Y. George Williams, Learned Counsel for 13th Respondent.
5. It is the stand of the Petitioner that he is the General Secretary of the Labour Progressive Federation, which is the largest following among workers working in the Transport Corporations. It has been representing workers in various negotiations both bilateral and tripartite forums. During the wage negotiations that was held during the year 1993 when one of the union which was not invited for negotiations before the then Labour minister, it had filed a writ petition in W.P. No. 13717 of 1993. Finally a division bench of this Court ordered election to be conducted to find out the representative character of each trade union through secret ballot under the supervision of a retired judge of this Court. Thereafter, a State-wide poll was conducted among transport workers. Four unions were elected to represent the employees in the wage settlement that was pending. Based upon the representative character of those four unions, they had signed a settlement with the transport corporation on 1.9.1998 for a period of three years. That settlement came to an end on 31.8.2001. Thereafter, a fresh negotiations were conducted, but the practice adopted was not followed by the Corporation. One trade union by name Tamil Nadu Government Transport Corporations Staff Federation with registration No. 601/MDU filed a writ petition before this Court being W.P. No. 40284 of 2006. In that writ petition, they had sought to challenge an order dated 24.7.2002 issued by the Chairman of the State Transport Corporation. By the said order, the request of that union to invite them for negotiations on exclusive basis and on the basis of last election was rejected. It was stated that several writ petitions filed by the other trade unions are pending. As against the rejection order dated 19.4.2005, a writ appeal was filed by the union in W.A. No. 1425 of 2006. In that writ appeal, this Court gave direction after holding that the transport corporation should strictly adhere to the directions given by the Supreme Court in
5. The learned single Judge has rejected the said plea of the Petitioners. In the common order, at para No. 16, the learned single Judge has held that ''the Petitioners, however, assert that they have the exclusive right to be called for the talks unless and until a secret ballot is held. The source to which they trace their so called right is not to any statute nor a law laid down by the Supreme Court, but only to the judgment of the Supreme Court in the Food Corporation of India case which, as stated earlier, are consensual judgments.''
6. But, the question on hand is no more res integra, in view of a Division Bench judgment of this Court, headed by one of us (Elipe Dharmarao, J.) in T.N. Civil Supplies Corporation Pirivu Anna Thozhir Sangam v. T.N. Civil Supplies Corporation Employees Union and Ors. [2009 CIJ 1017 MAD], wherein, dealing with a similar situation and negativing the similar observation made by the First Bench of this Court in W.A. Nos. 502 and 503 of 2005 etc. batch, dated 11.12.2007 (The General Secretary, N.L.C. Labour and Staff Union and Ors. v. NLC United Workers Union and Ors.) as that of the learned single Judge in the order impugned in this writ appeal, it has been held as follows in para No. 14:
The First Bench of this Court has proceeded on the wrong premise that since the above guidelines wee issued by the Honourable Apex Court by consent, they will not have any binding effect to the facts of the case before it, ignoring the well established legal principle that even if the decision has been rendered by the Honourable Apex Court by consent, if the Honourable Apex Court lays down general principles of law in the matter, the same will bind every person including those who are not parties to that order.
7. And in Para No. 12, after extracting the guidelines issued by the Honourable Apex Court in the above referred FCI case, it has been observed as follows:
Thus, it is seen that though the Food Corporation of India and the Unions representing the workmen have agreed to follow the "Secret ballot system", the guidelines, totalling 19, have been framed by the Honourable Apex Court after issuing notice to all the major All India Trade Unions, not by consent, but by considering Memorandum No. 25 of 1980, dated 18.12.1980 issued by the Office of the Chief Labour Commissioner, Ministry of Labour, Government of India, wherein a detailed procedure has been prescribed and further taking into consideration the Scheme prepared by the Appellant therein for assessment of representative character of the trade unions through secret ballot system and after hearing all the parties concerned.
8. This earlier judgment of the Division Bench of this Court, holding that the Honourable Apex Court issued guidelines in FCI case and they being the general principles of law in the matter, the same will bind every person including those who are not parties to that order, squarely applies to the facts of the present case also. In view of the above, the order of the learned single Judge suffers a legal debacle and the same, accordingly, needs to be set aside.
6. Even after the final disposal of the writ appeal by an order dated 21.9.2010, a miscellaneous application was taken out by the same trade union in M.P. No. 2 of 2010 in the said writ appeal. In that application, the same division bench had directed the conduct of secret ballot once again by the same retired judge (who had conducted previous election) on the basis of an election schedule submitted by the parties. In the meanwhile, 11th Respondent Anna Tholir Sanga Peravai filed a SLP as against the order passed by this Court in the writ appeal dated 21.9.2010. That unnumbered SLP (CC 16146 of 2010) was directed to be tagged along with the earlier batch of cases pending in SLP(C)Nos. 17195 and 17196 of 2009 vide order dated 29.10.2010 by the Supreme Court. The Supreme Court while tagging the SLP along with the earlier SLPs, gave the following directions and it reads as follows:
The elections, which are scheduled to be held in terms of the impugned order of the High Court, may be held and the results thereof will abide by the result of the Special Leave Petition.
7. Pursuant to the directions given by the division bench, an election notification was issued on 8.10.2010 stating that elections are held with regard to the conduct of secret ballot to elect the eligible trade union to take part in the negotiations for wage revision for the workers in the seven transport corporations of Tamil Nadu. The present Petitioner trade union, i.e. LPF filed an another writ petition being W.P. No. 25417 of 2010 taking exception to the fact that the election was held only to participate in the negotiations for wage revision. On the contrary, according to the said trade union, election is for negotiations for all purposes. Since the said issue cannot be raised before the election officer, the W.P. was taken up by the same division bench in W.P. No. 25417 of 2010. The division bench held that the notification, dated 08.10.2010 for holding elections is for electing trade unions to take part in the negotiations for all purposes. This order was passed as an interim order and that the writ petition was directed to be posted thereafter. In the meanwhile, elections were held under the supervision of a retired judge of this Court. The present Petitioner''s trade union had secured 57.31% and got the highest number of votes which was 73,450 out of 1,28,173 votes polled.
8. Based on the election results and pursuant to the interim direction given by this Court, the first Respondent State Government had issued a consequential G.O in G.O. Ms. No. 359, Transport Department, dated 08.12.2010. In that order in paragraphs 3 and 4, it was stated as follows:
3. The Election Officer declared the result of the secret ballot on 28.11.2010 by stating that the Labour Progressive Federation (LPF) has secured 73,450 votes out of 1,28,173 votes polled, which comes to 57.31% and got elected, but however in view of the order dated 29.10.2010 of Supreme Court of India in SLP C.C. No. 16146/2010, Election Officer has observed that the above said declaration will abide by the result of the order of the Supreme Court.
4. Based on the declaration of the result by the Election Officer and in view of having secured the highest number of votes i.e., 73,450 votes out of 1,28,713 votes polled which comes to 57.31% in the process of secret ballot, the Labour Progressive Federation has requested the Government in the reference 7th read above to issue orders recognizing it as a sole bargaining agent. The Government have carefully examined the above request and the other related Court orders in this connection and have decided to accord recognition to the Labor Progressie Federation, 10/25, Thiyagarajar Street, North Usman Road, T. Nagar, Chennai-600 017 to take part in negotiation for all purposes with regard to the State Transport Undertakings of Tamil Nadu from 28.11.2010. The above recognition will abide by the result of the SLP C.C. No. 16146/2010 pending before Hon''ble Supreme Court of India.
(Emphasis added)
9. Subsequent to the said G.O., after the general elections were held i Tamil Nadu, a new political party came to power with effect from 13.5.2011. The Petitioner union had complained to the firs Respondent vide its complaint letter dated 15.5.2011 stating that the transport corporations are indulging in an unfair labour practice and mass transfers are taking place of persons who are owing allegiance to the Petitioner trade union which is in turn affiliated to the then ruling party Dravida Munnetra Kazhagam (DMK) and that too the work done by them were taken over by the unrecognised trade union, i.e., 11th Respondent. Therefore, they had requested the status quo ante to be restored which was prevailing on the date of the Government order in G.O. Ms. No. 359, Transport Department, dated 08.12.2010. The Petitioner trade union also filed another writ petition before this Court being W.P. No. 12577 of 2011 seeking for a direction to the Respondents to take an appropriate action on the Petitioner''s complaint dated 15.5.2011 and to ensure that the allotment of premises to the trade union affiliated to the Petitioner should not be disturbed or interfered with by the 11th Respondent herein. When that mater came up during the summer vacation court, the vacation judge by an order dated 20.5.2011 recorded as follows:
I have heard the learned Senior Counsel representing the Petitioner, Learned Counsel appearing for Respondents 1 to 11 and the Learned Counsel for the 12th Respondent.
2. On instructions, the Learned Counsel appearing for the 12th Respondent would submit that their members would not interfere in the functioning of the Petitioner''s union and they would not disturb them or their premises in which they are in occupation. His statement is recorded.
3. Learned Counsel for the Respondents 1 to 11 would submit that they would provide necessary protection for the Petitioner in the event of any untoward incident happening in the premises. This statement is also recorded.
10. The main writ petition was directed to be posted after vacation. Thereafter, a third writ petition was filed by the same Petitioner in the name of his trade union, i.e. W.P. No. 12609 of 2011 seeking for a direction to the Respondent State and the other transport corporations including the 11th Respondent not to withdraw or interfere or deprive in any manner in the role of the recognised union, i.e., LPF and its privileges and existing practices and in particular not to promote or permit any role or privileges to the unrecognised 10th Respondent and its affiliates including in the matter of allotment of duties and preparation of roaster for drivers, conductors, maintenance, technical, supervisory, clerical workers and the workers in the administrative wing. Pending the writ petition, the sought for an interim injunction. The present 11th Respondent was shown as 10th Respondent in that writ petition. The counsel for the said Respondent had appeared before this Court. This Court had disposed of the interim application by passing the following order and directed the main matter to be listed on 15.6.2011 which reads as follows:
2. Learned Counsel for the 10th Respondent has also given an undertaking to the effect that the 10th Respondent shall not interfere in the administration of the Transport Corporation to be carried on by the Respondents 1 to 9. The Learned Counsel for the Respondents 1 to 9 has also submited that the administration shall be carried on in accordance with the service conditions. Post the Writ Petition on 15.06.2011. In the meanwhile, the Respondents 1 to 10 are directed to file counter. The undertaking given by the 10th Respondent s recorded by this Court.
11. Subsequent to the said order, the counsel appearing for the present petitioner sent a legal notice on 11.8.2011. In that notice given to the first and third Respondents, the counsel had warned the Respondents as follows:
1....We are given to understand that yourselves have called for the meeting of all the unions for discussion on service conditions and related issues today at 11.00 A.M. The said meeting if so convened is in gross violation of the orders of the High Court apart from being an Unfair Labour Practice. If the meeting proceeds, be assured that our client Federation Viz., Labour Progressive Federation will have no other alternative but to institute an application for contempt bringing your willful disobedience to the notice of the High Court.
12. After sending such a legal notice, the present writ petition came to be filed as noted already. However, in this writ petition, the Petitioner, who was the General Secretary of the LPF and who was also deponent to the affidavit in the earlier W.P. No. 12609 of 2011 did not refer to the fact of filing the earlier two writ petitions. The fact that the Petitioner has filed two earlier writ petitions, i.e., W.P. Nos. 12577 and 12609 of 2011 before this Court with more or less similar relief and did not choose to refer to the same in the present writ affidavit is clearly an abuse of the process of the court.
13. Merely because the interim orders passed in those writ petitions were included in the typed set of papers in this writ petition will not absolve them of not referring to the same in the affidavit sworn to by him in support of the writ petition. Having raised an identical issue in W.P. No. 12609 of 2011, it was also not open to them to file a second writ petition especially when the earlier writ petition is still pending. Hence the writ petition is liable to be dismissed on the short ground. Mr. R. Yashod Varadhan, learned Senior Counsel appearing for the 11th Respondent raised an objection on this issue. But, since substantial issues were raised by the Petitioner, the court did not want to dismiss the writ petition on a technical ground and heard the parties on the merits of the writ petition.
14. Mr. V. Prakash, learned Senior counsel appearing for Mr. K. Sudalaikannu, had stated that since the secret ballot was conducted and the Petitioner union had secured 57.31% votes and subsequently, by a Government Order, it was recognized as a sole bargaining agent, there is no option to the Respondents except to deal with the Petitioner''s trade union alone and they cannot deal with any minority union. Otherwise, it will negate the purpose of recognition granted to the Petitioner. Therefore, the Respondents calling upon meeting of all trade unions on 11.8.2011 was illegal and that the Petitioner union had sent a protest letter. It was contended that in order to avoid multiplicity of trade unions, a single majority union is recognised as a sole bargaining agent. Any attempt by the Respondents transport corporations to deal with the other unions would amount to an unfair labour practice which is prohibited under v. Schedule to the Industrial Disputes Act. Item No. 2 Part I of v. Schedule read with Section 2(ra) clearly stipulates that any dominance or interference or support to any trade union including employer taking active interest in organising trade union of its own workmen or showing potential in favour of one of several trade unions and if such trade union s not a recognized trade union, it is an unfair labour practice.
15. In the light of the above contentions, the learned Senior counsel had referred to a judgment of the Supreme Court in
12....What is of importance to us is that everyone was agreed that when there are multiple union in an industrial undertaking or an industry, the union having the largest membership of the workmen must be clothed with the status of recognised union and consequently as the sole bargaining agent. The underlying assumption was that the recognised union represents all the workmen in industrial undertaking or in the industry.
In view of the above judgment, the learned Senior counsel submitted that once there is sole bargaining agent, then the union represents all the workmen in industrial undertaking or in the industry.
16. The learned Senior counsel further referred to a judgment of the Supreme Court in
1. Collective bargaining is the principal 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 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.
17. Referring to the above passage, he submitted that with whom the employer should bargain as a sole bargaining agent has been a matter for discussion and some dispute. In the present case, that has been resolved by a direction given by the division bench and subsequently, elections as well as consequential G.O. Therefore, there is no other option to the Respondents except to deal with the Petitioner''s union as a sole bargaining agent of all issues. Even in case where any individual grievance has to be projected, he submitted that there is no common law right of representation conferred over the trade union and in the absence of any special statute conferring such right, minority unions cannot have any right as such right was not even conferred on the majority union.
18. Therefore, in this context, the learned Senior counsel referred to a judgment of the Supreme Court in
11. In our view, the contention urged by the counsel for the review Petitioner has merit and needs acceptance. There is no common law right of a trade union to represent its members, whether for purposes of collective bargaining or individual grievances of members. This is an inroad made into the common law by special statutes. Either the special statute operates proprio vigore, or it does not. In the situation before us, it is undisputed that Rule 24(a) on which the Respondent Association and the High Court placed reliance, has no application. This is accepted even in the judgment under review. Nonetheless, on general principles of equity, justice and fair play the judgment under review holds that the minority trade union should also be afforded an opportunity of ventilating individual grievances of its members. It appears to us that, in doing so, the attention of this Court was not adverted to the elaborate grievance-procedure machinery which is in existence and the details of which are placed on record.
12. Having considered the matter in its entire perspective, we are inclined to agree with the submissions of the review Petitioner. We do not think that denying such a right of representation to the minority union, when such a right is not conceded even to the majority union, amounts to discrimination requiring redressal at the hands of the High Court. It is also not possible for the High Court to exercise its powers under Article 226 to direct an employer to bring into existence such a system of representation in grievance procedure. In the absence of arbitrariness or discrimination, in our judgment, there was no scope at all for interference in exercise of writ jurisdiction. It is urged by Shri Salve for the review Petitioner that the application of such a principle in one zone might create serious repercussions all over, since the Bank has branches throughout the country. We also noticed that the appropriate Government in respect of State Bank of India is the Central Government and the rules made by the State Government cannot be enforced against it. Considering all aspects of the matter, it appears to us that the review petition must be allowed, as these crucial issues were not considered in the judgment under review.
19. Therefore, the learned Senior Counsel submitted that the official respondents should be given a direction not to deal with any other unions on any grievance of workmen except the Petitioner''s union.
20. Mr. V. Prakash, learned Senior counsel further referred to a judgment of a division bench of this Court in
21. Per contra, Mr. V.R. Kamalanathan, learned Standing Counsel for Corporation had stated that on 11.8.2011, the third Respondent did not call for any union and he had produced a letter dated 29.8.2011 sent by the Managing Director which reads as follows:
The allegations raised by the Petitioner in the affidavit is totally denied. In this regard, we wish to state that no meeting with all the Unions was conducted, to discuss on service conditions and related issues on 11.8.2011 at 11.00 A.M. at MTC Ltd. Therefore, the contention in the Affidavit is hereby denied and the management has not conducted any meeting with the Unions. Therefore, there is no gross violation of the order of the Hon''ble High Court as stated in the Affidavit.
22. He had also stated that the Petitioner union did not have majority following as claimed by them. He produced the details regarding the check of system by which the salaries were deducted towards union subscriptions from the transport workers in favour of trade unions. He gave the figures relating to March, 2006, March, 2011 and July 2011. The comparative details between the Petitioner union and the 11th Respondent given by them are as follows:
|
|
ATP |
LPF | ||||
|
Name of the Corporations |
Mar-06
|
Mar-11
|
Jul-11
|
Mar-06
|
Mar-11
|
Jul-11 |
|
M.T.C. |
9530 |
3286 |
14481 |
7980 |
13794
|
3391 |
|
SETC |
2745 |
870 |
3338 |
2236 |
3635
|
1645 |
|
T.N.S.T.C.(TNV) |
3011 |
1352 |
4356 |
2530 |
5943
|
3347 |
|
T.N.S.T.C.(VPM) |
8298 |
2265 |
12912 |
4320 |
14081 |
5379 |
|
T.N.S.T.C.(KUM) |
7544 |
2786 |
10097 |
4962 |
12072
|
6734 |
|
T.N.S.T.C.(MDU) |
5010 |
2757 |
7884 |
3880 |
8429
|
6777 |
|
T.N.S.T.C.(COM) |
4991 |
1742 |
8518 |
7159 |
9807
|
5101 |
|
T.N.S.T.C.(SLM) |
6432 |
2402 |
8800 |
2096 |
9787
|
2570 |
|
TOTAL |
47561 |
17460 |
70386 |
35163 |
77548
|
34944 |
23. Therefore, he submitted that the Petitioner''s claim that they are representing the majority of the workers do not stand to reason in the light of the latest figures available. On the contrary, as per the wishes of the workers, subscriptions deductions are made from their salaries. By the check of system as per the above table, the 11th Respondent as on date has twice the membership as that of the Petitioner. Hence the Respondents transport corporations will have to deal with the situation in a pragmatic manner and in the light of the principles of industrial law and for securing industrial peace in the transport sector.
24. Mr. R. Yashod Varadhan, learned Senior Counsel appearing for the 11th Respondent submitted that the writ petition itself is not maintainable not only on the ground of suppression of materials facts in the affidavit, but also in the earlier writ petition similar relief was claimed. He also submitted that such inter-union disputes cannot be raised in the absence of any law providing for same. He referred to a judgment of a division bench of this Court presided by A.K. Ganguly, C.J. (as he then was) in
3....The said Act does not make any provision for recognition of such a union. Any recognition of union, even if it is a union relating to the employees of the Central Government, is governed by some departmental circulars. Those circulars are administrative in nature and not statutory. Therefore, those circulars also cannot be enforced in a writ petition. However, unfortunately, with regard to disputes arising out of the conduct of elections of such trade unions for electing its Office Bearers, various writ petitions are filed before this Court and some of them are entertained. But in none of these cases, this question has ever been discussed. At least, no such decision has been brought to the notice of this Court.
5....It may be noted in this connection that these private bodies are not enforcing any statutory direction by filing such writ petitions inasmuch in the State of Tamil Nadu, there is no law relating to grant of recognition to a trade union, nor is there any law relating to holding of election of such trade unions..
25. He further submitted that since the earlier division bench''s direction to hold election for determining the representative character of the union itself was under challenge before the Supreme Court and the Supreme Court had given direction (as noted above) that the order of the division bench and the subsequent election will abide by the result in the SLP, the Petitioner cannot seek for any further direction of this Court as the matter is sub judice and seized by the Supreme Court.
26. The learned senior counsel also submitted that the 11th Respondent had secured majority and ultimately, the transport corporations will have to deal with the union commanding the majority of support. If there is no law providing for recognition of any trade union and also the right of such recognised trade union and the matter remains only as a non statutory privilege. This Court cannot enforce such non statutory right of a trade union. Hence he prayed for dismissal of the writ petition.
27. Ms. Ramapriya Gopalakrishnan, Learned Counsel appearing for 16th Respondent also after adopting the same argument had submitted that there is no corelation between conducting of secret ballot and actual membership of the trade union and more often, it did not reflect the correct picture. She also submitted that the present writ petition is not maintainable. As on date, the Petitioner did not enjoy the support or confidence of the majority of the workmen in the Transport sector.
28. Mr.V. Ajoy Khose, Learned Counsel appearing for the 20th Respondent (CITU) also submitted that the concept of sole bargaining agent is unknown to industrial law in the State of Tamil Nadu and excepting the States like Maharashtra, Gujarat, Madhya Pradesh and Rajasthan, there is no other States providing law relating to recognition of trade union and corresponding obligations of the trade unions as well as employer. In this State, the law itself provides for machinery to deal with the cause of the commission of unfair labour practice. The law also takes care of not only the sole bargaining agent, but also the associated bargaining agent. Therefore, the Petitioner cannot establish statutory right. In the absence of any law to the contrary and grant of recognition of trade unions itself is based upon non statutory procedure as per the Code of Discipline evolved by the tripartite labour conference. Therefore, he prayed for dismissal of the writ petition.
29. Mr. R.Y. George Williams, learned counsel appearing for the 13th Respondent had adopted the arguments of other counsels.
30. In the light of the rival contentions, it has to be seen whether the Petitioner has made out any case for grant of relief as prayed for by him?
31. The question of granting of recognition of the trade union in the State of Tamil Nadu is not based upon any statutory right and that it has already been noted by a division bench of this Court in K.V. Sridharan''s case (cited supra). Ever since the Code of Discipline adopted in the tripartite labour conference was utilized. Since in the absence of any law in the trade union recognition and any recognition granted by any employer is only based upon the code of discipline evolved in a tripartite labour conference. The said code in relation to the criteria for recognition of the union may be reproduced as follows:
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 only one union, this condition would not apply.
2. 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.
3. A union may claim to be recognised 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 recognised, 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 recognised.
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 per cent or more of the workers of that establishment it should have the right to deal with matters of purely local interest, such as, for instance, 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 organisation 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."
32. The National Labour Commission (NLC) headed by Justice P.B. Gajendragadkar, after noticing that the law relating to the union recognition was available only in four States mentioned above, had made recommendations in his report vide paragraph 23.50, which reads as follows:
23.50. We have thus, over the last ten years, the experience of securing recognition for a union both on a statutory and on a voluntary basis. It shows that the former has distinct advantages. On this point there is fair measure of support in the evidence before us. It would be desirable to make union recognition compulsory under a Central law, in all undertakings employing 100 or more workers, or where the capital invested is above a stipulated size. A trade union seeking recognition as a bargaining agent from an individual employer should have a membership of at least 30 per cent of the workers in the establishment. If it is for an industry in a local area, the minimum membership should be 25 per cent. Where more unions than one contend for recognition, the union having a larger following should be recognised.
33. Notwithstanding such recommendation has been made as early as in the year 1969 and more than 42 years have elapsed, neither the Central Government nor the State Government have enacted law relating to trade union recognition. Therefore, as of now such recognition is based upon non statutory procedure. Even if such law as made whether the law will prevail for the secret ballot as a secret method or it will have to continue the verification of membership method itself is debatable. The Labour Ministers'' conference held in November, 1969 had discussed the National Labour Commission''s recommendations. The majority of the State Governments excepting West Bengal and Delhi, only preferred verifiction method and those two States alone recommended for secret ballot. [See: "Labour Relations Law in India" by S.L. Agarwal, Research Professor, Indian Law Institute, New Delhi - The Macmillan Company of India Limited, Revised Edition 1980, Page 99].
34. The National Labour Commission''s recommendations were also discussed by the consultative committee of Parliament attached to the Department of Labour during December, 1969 and February, 1970. Majority of members excepting three representatives did not vote for a secret ballot. The Standing Labour Committee in its 29th session held on 23.7.1970 also took note of the follow up action on the recommendation of the NLC. The recommendations of the NLC and the Standing Labour Committee made to the Government of India in 1974 to work towards the new industrial relations bill which conceived the idea of providing statutory procedure for recommendation. Finally it was introduced as an Industrial Relations Bill in the year 1976. The Bill provided for compulsory registration of the trade union and also compulsory recognition of the union as a bargaining agent. In fact the Industrial Relations Bill of 1978 provided that sole and chief negotiation agent must get 65 % votes. Though the Bill was placed before the Parliament on 30.8.1978, ultimately it was referred to the select committee of the Parliament and subsequent to the change of Government in January, 1980, the Bill got lapsed. The Second National Commission for Labour (NCL-II) presided by Ravindra Verma (former Labour Minister for Government of India) in its report submitted on 29. 6.2002 had shown its preference for the check of system than to the method of secret ballot for trade union recognition.
35. Therefore, as on date, there is no law providing for grant of recognition for the trade union in the industry. If such law is made, the law will also take note of actual percentage required to get recognition as the sole bargaining agent. Whether the process for identification should be based upon verification method or secret ballot will also be determined. In Maharashtra, a special law was enacted known as Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, provides for corresponding rights and obligations on the part of the union as well as management. It also provides machinery to enforce in case of breach of legislative prescription. Until such time, such a law is enacted, this Court cannot grant any direction and by judicial fiat to enact the law on the subject.
36. It must be noted that Balmer Lawrie Workers'' Union''s case (cited supra) did not arise out of the Industrial Disputes Act and hence it cannot have application to the case on hand. The observations made therein cannot have any application to States which do not have similar provisions like Bombay Industrial Relations Act (BIR Act) and MRTU and PULP Act. Similarly the Food Corporation of India Staff Union''s case (cited supra) arose out of the interpretation of circulars of the Central Government laying down procedures for grant of recognition in Central Public Sector units and in that context, the unions have agreed to follow the secret ballot system for assessing the representative character of the trade union. The Supreme Court in Food Corporation of India Staff Union''s case (cited supra), in paragraphs 2 and 5 had observed as follows:
2. In the appeal at hand, the Food Corporation of India (FCI) and the unions representing the workmen have agreed to follow the "secret ballot system" for assessing the representative character of the trade unions. We have, however, been called upon to lay down as to how the method of secret ballot should be tailored to yield the correct result. Keeping in view the importance of the said matter, an order was passed as early as on 22-11-1985 to issue notice and hear all the major all-India trade union organisations on this aspect. Pursuant to this notice some trade unions'' organisations have appeared; and we have heard the Learned Counsel representing them, so also Shri Thakur, learned Senior Counsel appearing for the Appellant.
5. We direct the CLC and the FCI to hold the elections in accordance with the procedure prescribed by this order. This may be done before 30-4-1995. The appeal and the writ petition are disposed of in the above terms...
(Emphasis added)
37. Therefore, it is not the intention of the Supreme Court to lay down law relating to procedure for selection of representative union and that it should be done only by secret ballot. A judgment of the Supreme Court can be said to be a binding precedent under Article 141 only when it intends to lay down law on the subject as held by the Supreme Court in
41.....In Municipal Committee, Amritsar v. Hazara Singh18 the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh19 this Court observed that everything in a decision is not a precedent. In Delhi Admn. v. Manohar Lal20 the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC v. Mahadeva Shetty21 this Court observed as follows: (SCC p. 206, para 23)
The decision ordinarily is a decision on the case before the court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. ... The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided.
38. Therefore, the finding of the division bench in W.A. No. 1425 of 2006 that these guidelines are binding even on parties who are not before the Supreme Court and even to States where no such law was available may not be correct. The Tamil Nadu Government had not given any direction in the form of any executive order or statutory order regarding the recognition of a trade union. Further, the judgment in W.A. No. 1425 of 2006, dated 21.9.2010 is now pending by way of appeal before the Supreme Court in SLP(C)... C.C.16146 of 2010 and that by an order dated 29.10.2010, it was directed to be tagged along with the earlier matters which are pending.
39. Even while passing the said order in W.A. No. 1425 of 2006, unlike the case before the Supreme Court, all the trade unions in the transport corporations were not made parties before the division bench. But in the Food Corporation of India Staff Union''s case (cited supra), notice was given to all the major trade unions in the FCI and some of them were also heard.
40. Similarly when the present Petitioner union moved this court in W.P. No. 25417 of 2010, the writ petition itself was taken up by the division bench and in the absence of the other trade unions, a direction was given modifying the election notification so as to make it read that the election by secret ballot was held for the purpose of identifying the unions to take part in negotiations for all purposes. By which time the interim order was passed, (i.e., on 22.11.2010), notice on the SLP against its main order was issued by the Supreme Court (i.e., on 29.10.2010). Even otherwise, by the interim order, the division bench had held that the union which comes out successful will be the sole bargaining agent without indicating the percentage that was required for getting such a status and also the status of other trade unions which may get substantial number of votes. It was pursuant to the said direction, after the elections were held, the State Government had issued G.O. Ms. No. 359, Transport Department, dated 08.12.2010 and held that the petitioner union having got 57.31% and notified they will be the sole bargaining agent.
41. The Food Corporation of India Staff Union''s case (cited supra) does not lay down any law and it was an order passed with the consent of parties. What is binding is the ''ratio decidendi'' in case was the observation made by a Full Bench of the Bombay High Court vide its decision in Air India Employees Guild, Mumbai v. Air india Ltd., Mumbai and Ors. reported in 2007 (1) LLN 491. In that case, they quoted with approval a decision of our division bench in the case relating to Southern Railway Mazdoor Union v. Railway Board and Ors. dated 17.10.2003 made in W.P. No. 3168 of 2002. In paragraphs 6 and 7, the Bombay Full Bench observed as follows:
6. In Food Corporation [1995 (1) LLN 783] (vide supra), parties consented to follow the secret ballot system for assessing representative character of the trade unions. This has been noted by the judgment of the Division Bench of this Court in Mormogao Port Trust M.O.H.P. v. Chairman Marmugao Port Trust (Panaji Bench) in Writ Petition No. 9 of 2000 decided on 3 July, 2000. This has also been noted by the Division Bench of the Madras High Court in the case of the Southern Railway Mazdoor Union v. Railway Board and Ors. decided on 17 October, 2003, in Writ Petition No. 3168 of 2002. The judgment therefore, in Food Corporation of India (vide supra) being by consent, does not lay down any law. What is binding is the ratio decidendi.
7. Once the Code of Discipline is applicable to the industry, it is that Code that must be followed. The Code of Discipline does not provide for determining the majority character of the union by secret ballot. Is it then open to a Court exercising its extra ordinary jurisdiction to substitute a procedure for determining the representative character of the union by one not provided for by the Code of Discipline and not greed to by all the relevant parties. The judgment of the Division Bench proceeded on the assumption that the predominant feature of the Code of Discipline was to provide for recognition on the basis of criteria of majority and how that majority can be ascertained was incidental to the main scheme and that the device of secret ballot would not be derogatory to the scheme of the Code of Discipline. What the Court did was to read a procedure for determining the majority character of the union not provided for by the Code of Discipline. The learned Bench also did not examine the procedure laid down in the Code of Discipline to test the argument whether the method of secret ballot was in consonance with the procedure for verification of membership to determine the majority character of the union. This important aspect was neither considered nor answered by the learned Division Bench. We will refer to that procedure whilst answering the other questions, which have been referred. Once the Code of Discipline applies to the industry and the parties had agreed to follow the Code of Discipline, it is really not open to a Court, to substitute its judgment in place of the agreed procedure for ascertaining the majority of the union as provided for in the Code of Discipline, whatever may be the merits or demerits of the verification procedure. The right to provide a methodology is in the Legislature and failing legislation in the executive. A Writ Court can issue direction so as to make the relief to be granted effective. It cannot however, by its judgment decide as to what is the best method when the method is already laid down by a competent organ under the Constitution. At the highest, if the method is challenged, it can if grounds are available, declare the same as being unconstitutional. In our opinion, the law as laid down in O.N.G.C. is contrary to the procedure for verification of membership as provided for in the Code of Discipline and consequently the judgment in O.N.G.C. stands overruled.
42. The four issues that came up for consideration before that full bench of the Bombay High Court was set out in para 1 of the judgment and for the purpose of this case, the first two issues framed by the Full Bench will be relevant and they are as follows:
(1)Whether the ratio of the judgment of the Supreme Court in Automobile Products of India Employees'' Union v. Association of Engineering Workers, Bombay, and others [1990 (2) L.L.N. 269](SC) and the judgment (of the Division Bench of this Court) in Association of Engineering Workers v. Dockyard Labour Union and others 1993 1 C.L.R. 637 and the judgment of the (Division Bench of this Court) in Association of Engineering Workers v. Dockyard Labour Union 1991 (2) L.L.N. 595, applies to the verification of membership of union in establishment governed by the Code of Discipline and whether it applies only to cases under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act?
(2)Whether the method of secret ballot to ascertain majority is derogatory to the Code of Discipline?
43. The full bench answered those two questions in paragraphs 14, 19(1), 17 and 19(2) and they may be extracted below:
Issue No. 1:
14. From the discussion with reference to the judgments it would be clear that the issue was decided, considering the statutory provisions under M.R.T.U and P.U.L.P. Act. The issue before the Supreme Court in both the cases, was whether the procedure for recognition was in consonance with the provisions of the M.R.T.U and P.U.L.P. Act. It is, therefore, clear, that what was considered in those judgments were the provisions of the M.R.T.U and P.U.L.P. Act. What was in issue for consideration before the Supreme Court was whether holding of secret ballot under the provisions of the M.R.T.U and P.U.L.P. Act was in consonance with the provisions of the Act for deciding who commanded the majority or whether it was contrary to the provisions of the Act. The Supreme Court held that, such a procedure was alien to the Act. That is the ratio decidendi of those judgments. As pointed out on behalf of the Petitioners by Sri Deshmukh, what the Court must do is to cull out the ratio decidendi of the judgment. What would be binding under Article 141, of the Constitution would be that ration decidendi. Our attention for that purpose was invited to the judgment in the matter of
Such an interpretation would be reading that judgment totally out of context in which the questions arose for decision in that case. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete ''law'' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
Applying this principle, we are clearly of the opinion that the two judgments of the Supreme Court referred to earlier would apply only for recognition of unions governed by provisions of the M.R.T.U and P.U.L.P Act. That ratio cannot be applied to verification of membership of an union in establishments governed by the Code of Discipline and or those not covered by the provisions of the M.R.T.U and P.U.L.P. Act.
19. In the light of that, we may answer the reference as under:
(1)The ratio of the judgment of the Supreme Court in Automobile Products of India Employees Union [1990 (2) L.L.N. 269] (vide supra) and Association of Engineering Workers (vide supra) and the judgment of Division Bench in Associated Engineering [1991(2) L.L.N.595] (vide supra), applies to verification of membership of the unions and establishments, covered under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act." Issue No. 2:
17. On a consideration of the provisions and the judgments, what follows is that secret ballot would only indicate preference of an individual employee on the date the secret ballot is held for a particular union, even if he be not its member. It cannot be a method for verification of membership of the union in terms of the Code of Discipline for the particular period of verification of membership. The method of secret ballot for ascertaining majority of membership is, therefore, derogatory to the Code of Discipline.
19 (2)The method of secret ballot to ascertain majority of membership is derogatory to the Code of Discipline.
44. Apparently, these distinctions were not brought to the notice of the division bench which disposed of W.A. No. 1425 of 2006. The division bench held that the decision of the Supreme Court in FCI case (cited supra) was binding, but did not refer to the procedure evolved for recognition of trade unions under the Code of discipline.
45. The division bench in MRF Workers Union, rep by its General Secretary, Arakkonam v. Government of Tamil Nadu and Ors. reported in 2009 (4) LLN 967 : 2009 (4) LLJ 685 (Mad) though did not refer to the ratio of the Full Bench of the Bombay High Court in Air India''s case (cited supra) more or less came to the correct conclusion while giving its directions. It confined itself in directing the authorities of the labour department to follow the ''code of discipline'' procedure (i.e., verification method) in granting recognition. The division bench headed by H.L. Gokhale, C.J (as he then was) did take note of the fact that secret ballot was not part of any statutory requirement under law. It is necessary to extract para 37 of the judgment which is as follows:
37. Having noted this scenario and considering that there is continuous strife in the company, in our view, the Court cannot simply remain a silent spectator. We are aware that the Court has its own limitations while exercising jurisdiction to issue appropriate writ or direction. On analyzing the provisions of Article 19(1)(c), it recognizes the right to form association and also the mandate of Industrial Disputes Act that there should be recognized union and when there is a inclination of the State Government to accept a particular procedure, which is otherwise also accepted in different statutes throughout the country, in our view, the correct course will be to give a direction to the Commissioner of Labour to call upon the two unions to submit their membership degails as per the Code of Discipline and examine their membership as provided under the Code over a period. In the event, there are any objections, the objections could be verified in the light of clause-7 of the Code of Discipline by personal interrogatories so as to arrive at the correct membership of either of the two trade unions. Alternative to this procedure namely, ballot system, which, although is recommended by the Committee of the ILO, is not accepted in any of the statutes which have been brought to our notice. The recommendations of the Committee can only be respected to this effect that there has to be a collective bargaining agent of the workmen, which is to be a truly and independent representative agent. As far as the methods suggested by the Committee is concerned, it would result into determination on the basis of the facts arrived at a particular point of time, which has not been very much appreciated as a proper method. The method of verification on the other hand will show the following of a particular union over a longer period and would definitely be a better option. The other alternative approach is to say that none of the methods is recognized and therefore the choice of the management will prevail. That certainly cannot be permitted in view of the provisions of the fifth schedule of the Act. The Code of Conduct has a force of acceptance of the organizations of the workers and of the Management and also of the Government, and is being following in different undertakings. Further, it is also in tune with the provisions of the different statutes in different States.
46. As already noted, this State do not have any law for recognition of trade union and despite NLC''s recommendations, no law has been made. Even the only law attempted to be enacted was the Industrial Relations Bill, 1978 which intended to provide 65% votes as the criteria to act as a sole bargaining agent. The State of Tamil Nadu had not issued either any statutory or executive order in the matter of recognition. The previous elections in the Transport industry referred to by the division bench, i.e., election which was held in the year 1998, pursuant to the order of the earlier division bench provided for representative unions and that there were four representative unions. They were elected only for the purpose of signing the settlement and not for any other purposes. Even the earlier writ petition and W.A. No. 1425 of 2006 which was filed by one trade union wanted itself along with the other three unions for getting included for the talks for wage negotiations. Therefore, when this Court granted a direction to hold secret ballot, it is only for the purpose of negotiating a wage settlement. Any other construction would erase the entire history of the trade union movement in the transport sector in this State and nullify the other unions'' existence.
47. In fact for the last 50 years, both the transport department of the State Government and the subsequent transport corporations were dealt with several trade unions based upon their related strength and their representative character. The transport sector being the volatile and sensitive sector, even local work stoppages can bring disaster and create a bottleneck in the efficiency of movement of transport. They will have to necessarily deal with several forces to maintain normalcy in the transport corporations. Therefore, by incorporating the principles laid down in the FCI''s case and further conferring sole bargaining status without defining the parameters of such status, any direction issued will virtually amount to legislating on the field of trade union recognition.
48. The Supreme Court had deprecated the practice of the courts'' legislating. In this context, it is necessary to refer to a judgment of the Supreme Court in Divisional Manager, Aravali Golf Club v. Chander Hass reported in (2008) 1 SCC 683. The following passages found in paragraphs 17 to 22 may be usefully reproduced below:
17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen1 and S.C. Chandra v. State of Jharkhand2 (see concurring judgment of M. Katju, J.).
19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State-the legislature, the executive and the judiciary-must have respect for the other and must not encroach into each other''s domains.
21. The theory of separation of powers first propounded by the French thinker Montesquieu (in his book The Spirit of Laws) broadly holds the field in India too. In Chapter XI of his book The Spirit of Laws Montesquieu writes:
When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
(emphasis supplied)
We fully agree with the view expressed above. Montesquieu''s warning in the passage above quoted is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for "overreach" and encroachment into the domain of the other two organs.
22. In Tata Cellular v. Union of India3 (vide AIR para 113: SCC para 94) this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many courts are not following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges'' preferences. The Court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the field of administration while the Court does not. In the words of Neely, C.J.*: (SCC p. 681, para 82)
82. ... ''I have very few illusions about my own limitations as a Judge ... I am not an accountant, electrical engineer, financier, banker, stockbroker or systems management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation.''
It is not the function of a Judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.
49. Further, the Supreme Court in
3......we have perused the impugned order and we are of the opinion that the directions contained in para 7 of the impugned judgment were wholly unwarranted as they amount to judicial legislation.
5......There is no statutory rule Thus, the High Court has indulged in judicial legislation, which is not ordinarily permissible to the Courts vide Aravali Golf Club v. Chander Hass1. Also, none of these colleges were made parties before the High Court, and hence the aforesaid direction is violative of the principles of natural justice.
50. In fact, in the case of an industry where the Bombay Industrial Relations Act has application and wherein the role of representative union has been provided, came to be dealt with by the Supreme Court vide its judgment in
55. Section 2 defines various terms. Chapter II deals with authorities constituted or appointed under the Act. Chapter III provides for registration of unions. Chapter IV relates to approved unions. Chapter V titles "Representatives of Employers and Employees, and appearance on their behalf".
56. Section 27 enables the State Government to recognise any combination of employers as association of employers in an industry in any local area and to represent an employer in any proceeding under the Act. Section 27-A correspondingly provides for appearance on behalf of employees. It is, however, in negative terms and enacts that save as provided in certain cases (Sections 32 and 33), "no employee shall be allowed to appear or act in any proceeding under this Act except through the representative of employees". The section thus puts an embargo on appearance of any employee except through the representative of employees.
57. Section 14 empowers the Registrar to register a "representative union" for any "industry" in any "local area". It is thus clear that there can be only one representative union for one industry in one local area. Section 30 enumerates representatives of employees and provides for order of preference in which such representatives are allowed to appear or act in any "industry" in any "local area". It reads thus:
30. Representative of employees.-Subject to the provisions of Section 33-A, the following shall be entitled to appear or act in the order of preference specified as the representative of employees in an industry in any local area -
(i) a representative union for such industry;
(ii) a qualified or primary union of which the majority of employees directly affected by the change concerned are members;
(iii) any qualified or primary union in respect of such industry authorised in the prescribed manner in that behalf by the employees concerned;
(iv) the Labour Officer if authorised by the employees concerned;
(v) the persons elected by the employees in accordance with the provisions of Section 28 or where the proviso to Sub-section (1) thereof applies, the employees themselves;
(vi) the Labour Officer:
Provided-
Firstly, that the persons entitled to appear or act under clause (v) may authorise any qualified or primary union in respect of such industry to appear or act instead of them:
Secondly, that where the Labour Officer is the representative of the employees, he shall not enter into any agreement u/s 44 or settlement u/s 58 unless the terms of such agreement or settlement, as the case may be, are accepted by them in the prescribed manner:
Thirdly, where in any proceeding the persons entitled to appear or act under clause (v) are more than five, the prescribed number elected from amongst them in the prescribed manner shall be entitled to appear or act instead.
It is thus clear that representative union is having priority and "preference" over other unions to appear on behalf of employees of such industry in the area.
58. Section 42 in Chapter VIII provides for change and lays down procedure for such change. It reads:
42. Notice of change.-(1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix a copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particular case.
(2) Any employee desiring a change in respect of an industrial matter not specified in Schedule I or III shall give notice in the prescribed form to the employer through the representative of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed.
(3) When no settlement is arrived at in any conciliation proceeding in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under Sub-section (1) or Sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of Section 63. If at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, he shall give fresh notice in the manner provided in Sub-section (1) or (2), as the case may be.
(4) Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under Standing Orders, or (ii) any industrial matter arising out of the application or interpretation of Standing Orders, or (iii) an industrial matter specified in Schedule III, except Item (5) thereof shall make an application to the Labour Court and as respects change desired in any industrial matter specified in Item (5) of Schedule III, to the Industrial Court:
Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period.
51. In dealing with the scope of the Bombay Industrial Relations Act, the Supreme Court in Shivanand Gaur Shankar Baswanti''s case (cited supra) in paragraph 65 held as follows:
65. In Santuram Khudai v. Kimatrai Printers & Processors (P) Ltd.6 a similar question arose. The Court reiterated the law laid down in Girja Shankar4 and held that once the representative union appears on behalf of the employees in a proceeding before a Labour Court under the 1946 Act, individual workman has no locus standi. According to the Court, combined reading of Sections 27-A, 30, 32, 33 and 80 of the Act make it clear that consistent with the avowed policy and prevention of exploitation of workmen and augmentation of their bargaining power, the legislature has clothed the representative union with plenary power to appear or act on behalf of employees in any proceeding under the Act. Keeping in view the said object, it has deprived individual employees or workmen of the right to appear or act in any proceeding under the Act where the representative union enters appearance or acts as representative of the employees. Following Girja Shankar4 the Court observed that mala fides or bona fides of the representative union have no relevance in construing the relevant provisions of the Act. In case the employees find that the representative union is acting in a manner which is prejudicial to their interests, their remedy lies in invoking the aid of the Registrar under Chapter III of the Act requesting him to cancel the registration of the union.
52. Even in an issue covered by the BIR Act, when a question arose about the nomination of two worker Directors, a representative union claimed that both the posts of Directors should be given only to that union being a recognised union. When the State Government did not agree to nominate as per its wishes, the recognised union went before the Bombay High Court and subsequently to the Supreme Court. The Supreme Court in
4. It was the stand of the Appellant Union in the writ petition before the High Court that as it is a recognised Union under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, ("the Act" for short) both the Directors can be appointed from amongst its own members. In the impugned judgment it has been held that literal construction of the aforesaid provision provides for two Directors from amongst the representatives of the trade unions and it was not necessary that the trade unions shall be recognised unions as such. In order to fructify the very spirit underlying the representation of the workmen on the Board of Directors, in our view, such type of literal construction would not be in consonance with justice and fair play when there is a recognised Union under the Act which is at the helm of affairs and would be protecting the interest of the workmen by negotiating with the management. The Rule should be so interpreted that at least one Director should be from the members of the trade union recognised under the Act. So far as the appointment of the second Director is concerned, it is open to the State Government to appoint such Director from the representatives of the remaining registered trade unions having membership of the other employees of the same organisation, though they may not be recognised under the Act. It is clarified that while appointing the second Director, it would be advisable to the State Government to keep in view the maximum number of membership of the other registered unions concerned so that any further challenge on the ground of arbitrariness of its action can be avoided. This is left to the good sense of the State Government. It may pass appropriate orders in this connection. Subject to these clarifications and modifications the appeal is disposed of. No costs.
53. Therefore, the recognised union was directed give one post of Director and the second post was directed to be nominated by the State Government even from the representatives of the remainder registered trade unions having membership in the transport corporation notwithstanding the fact they were not recognised. Such is the legal position even in an industry covered by the BIR Act.
54. Further, the status of such recognition granted to non statutory bodies and whether it can be enforced in the court of law came to be considered in an earlier division bench judgment of this Court in
5. For more than one reason, we are unable to follow the above judgment. That was also a case of de-recognition of the Kerala State Electricity Board Executive Workers'' Union by the Kerala State Electricity Board. With reference to such a union we are unable to see any justification for a reference to Article 309 of the Constitution of India at all. Secondly, in that case as the judgment itself points out what the Board had decided was to lay down a policy as to how industrial peace could be achieved, which unions should be considered as representative of particular categories of employees and which unions should be allowed to resort to collective bargaining on behalf of the said workers. That is not the position in the present case. Recognition was granted by the Appellant to the Respondent-union on the latter''s application expressly for recognition, and, therefore, the circumstances are not the same. Thirdly, in the case before the Kerala High Court, as the judgment itself points out the arrangement made by the Kerala State Electricity Board under Ext.P9, were only for three years, while no such restriction is present in the case on hand. For all these reasons we are unable to hold that the decision of the Kerala High Court has any application to the present case. On the other hand, if it is to be held, that unless there is a statutory provision dealing with recognition, it is not possible for a person like the Respondent to approach the Court under Article 226 of the Constitution, in the event of de-recognition, either on the ground of violation of the principles of natural justice or on the ground of arbitrariness, we respectfully disagree with the view of the Kerala High Court, for the reasons which we shall presently indicate.
6. Admittedly there is no statutory provision in this case dealing with the question of recognition or re-recognition. Equally admittedly the Code of Discipline in Industry is not statutory. Notwithstanding 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 to represent the workers in a particular category, with reference to their service conditions, with the management; in other words, it becomes a bargaining agent on behalf of the group of workers with reference to which it was recognised. Withdrawal of that statute or recognition will certainly bring about adverse consequences, 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 Article 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.
55. Finally, Mr. V. Prakash, learned senior counsel submitted that only the sole bargaining agent can bring greater good to the workers and multiplicity of unions having a say will only result in the bargaining power of the workers diminished. But this Court is unable to agree with such sweeping submissions. In fact in analysing the labour capital relations in the Indian Textile Industry: A comparative study of Ahmedabad and Coimbatore, Dr. Manju Parikh of University of Chicago in her doctoral thesis submitted in December 1988 made an interesting comparison between the relative gain and loss between the textile workers of Ahmedabad and Coimbatore. While Ahmedabad is for sole bargaining agent for Textile Labour Association (TLA) under the BIR Act, in Coimbatore, it was found that there were multiple unions. In this context, in her concluding remarks, she had observed as follows:
I have examined the developments in the two industrial relations regimes since Indian independence in the late 1940s. Interestingly, Ahmedabad''s regime has created a bureaucratized, over-institutionalized unionism with representational monopoly, whereas Coimbatore''s regime has produced highly politicized, multiple unionism. Coimbatore''s unions do not have any other resource than strikes to gain recognition from employers. There are no legal provisions which guarantee employer recognition or selection of single bargaining agents. Intense intra-organizational rivalry is a dominant characteristic of Coimbatore''s labor scene.
There is, however, a puzzling dimension to the two regimes. In Ahmedabad, the rank and file of TLA find it very difficult to influence their leaders and have failed in their repeated attempts to change the leadership. Similar frustrations have been experienced by workers in Bombay and Indore in their efforts to remove incumbent unions with representational monopoly. In theory, the Bombay Industrial Relations Act has provisions for challenging the status of the existing representative union and for accrediting another union with this status. However, there has not been a single successful challenge since the law was enacted. Some critics have argued that the state has been partial in reinforcing the position of the established unions; however, I also think that workers have experienced tremendous difficulty in creating sustained and unanimous support in removing the existing representative unions.
Coimbatore''s situation provides an interesting contrast. Until 1972, Coimbatore''s labor movement was spending most of its energy in intro-organizational disputes. However, since 1972, there has been a different story. The rank and file in Coimbatore have been successful in pressuring their leadership and have participated in five major strikes. As a result of these agitations, the workers in Coimbatore now receive the highest wages in the industry and higher than officially sanctioned bonus payments.
The interesting questions these developments led me to ask were, why is it that Ahmedabad workers are frustrated in their efforts to organize collectively, whereas Coimbatore workers have succeeded in their attempts? There are no obvious answers, but I have offered a few tentative explanations. One can argue that the political culture of the textile centers has a significant effect. In Ahmedabad, the tradition of cooperation and compromise has been fostered, and strikes have been discouraged. In contrast, in Coimbatore, strikes and agitations are the norm of the day; therefore, it is easier for workers in Coimbatore to organize collectively.
Another possible explanation can be found in the economic conditions of the mills. Since Indian independence, the government''s textile policy has been to protect the handloom sector. As a result, there has not been much expansion in the capacity of weaving mills. Most of the expansion in the mill sector has been in the yarn producing spinning mills. It is, therefore, easy to argue that, if the spinning mills in Coimbatore have largely benefitted from the major expansion of the industry in the last forty years, it is not difficult for them to share their profits with their workers. However, the question still remains. How were the eight unions with 60,000 workers able to act collectively given their intense organizational rivalry?
I find more compelling answers offered in the recent collective action literature. Using Olson''s and Hardin''s elaborations of the problem of collective action, I have suggested that perhaps the situation of the workers in Coimbatore resembles and iterated, n- person game of prisoners'' dilemma, where optimal result can be achieved through contract by convention. In other words, the fact that most of the workers live and work in proximity of each other, they recognize the need to cooperate with each other. In organizing for the strikes, the workers overcame the difficulty of free riderism through arriving at a consensus on demands which were universally beneficial. The cooperation once achieved has been reinforced through successive agreements on strikes. Furthermore, Hardin has also suggested that, in some circumstances, obtaining collective goods is relatively easier than removal of collective bads. Perhaps it is easier for Coimbatore''s workers to organize collectively (for obtaining desirable collective goods such as higher wages, bonus, etc.) than for Ahmedabad''s workers to remove the TLA, a difficult and intangible collective bad.
56. Thereafter, Mr. V. Prakash, learned senior counsel argued that subsequent to the change of government, 11th Respondent is pressurizing the workers and colluded with the officials of the corporation and also making promise of favourable posting and getting workers to join their union. Hence they are adopting unfair labour practice. In this case, it must be noted that before elections were held in the State legislature, the present Petitioner union, which was affiliated to the then ruling party had a membership of around 77548 workers as provided by the check of system. But the same trade union after three months after the results, in July 2011, its membership got reduced to half its size, but the 11th Respondent got its membership increased. There can be two reasons for this trend. One is having achieved a uniform service condition, most of the workers want them not to get transferred to different places and as far as possible to have a choice of their place of posting and if necessary as an office bearer of a local unit to have duty relief, i.e., giving attendance and going to do the so-called union work. This practice has been deprecated by this Court on several times. But yet the same trend continues.
57. Mr. V. Prakash, learned Senior Counsel had contended that the office bearers of the Petitioner union are working, whereas those who joined the 11th Respondent are being granted duty relief. In this process, hundreds of workers in the name of office bearers of trade unions affiliated to the party in power (which recognised or not) are enjoying such duty relief without doing any work.
58. In this context, deprecating the right to get such duty relief by the office bearers of a recognised trade union, a division bench of this court in
3....It cannot be pleaded that absolving the office-bearers of the unions, though they are workmen, from the normal rendering of service to the employer is a customary concession. Such concepts would be anathema to the basic idea behind employer- employee relationship, which will stake in the rendering of service by the employee and the honouring of corresponding obligations by the employer, like compensating for services rendered, etc. If a workman should do no service at all to the employer on the simple ground that he is an office bearer of the union, that would nullify the very concept of workman and further his condition of service. We do not think that we should subscribe our support to such a theory by annexing an unwieldy connotation to ''customary concession or privilege''.....
59. Dealing with this aspect of gains made by the political patronage by a trade union, Professor E.A. Ramaswamy, a noted scholar and faculty of the Administrative Staff College of India, Hyderabad in his book "Power and Justice" 1984, Oxford University Press [page 21] had made the following observations:
A third source of complication is the link up between one segmant of the labour movement and the political party which has formed a government. Most large parties have a labour wing, and the ruling party will be no exception. The union affiliated to the ruling party demands, and often gets, preferential treatment from the state. At whose expense will it be so preferred? The answer can only be empirical, depending on the interests of the union in the specific dispute and its relations with the management and rival unions. Whatever the empirical situation, the state will not be able to completely side-step the special claims of such a union. This is a major force constraining the state.
Special claims do not emanate merely from the labour wing of the ruling party. Electoral alliances have become a fact of political life in India, and allies who help the ruling party gain power will make their demands too. In one of the cases we are to describe, the government supported the labour wing of an electoral ally and tried its best to secure favourable terms for this union. The special treatment accorded to the labour unions of the ruling party and its allies is of course not a one-way transaction. The party in power and the government get exchange favours in return.
60. The situation in U.S.A is no different. Sounding similar note in his book on American Unionism: "An Historical and Analytical Survey", Mr. George H. Hildebrand of the Cornell University [1979] dealing with public sector trade unions, in a chapter on Strikes in the public sector, [page 98] had observed as follows:
In concluding this brief consideration of bargaining in the public sector, the point should be emphasized that no matter what form it takes, the political factor is ever-present in some way. In some situations, to be sure, it may be possible to simulate quite closely the private-sector counterpart, provided that the fundamental problem of unity of management can be solved. But it is politics that makes the problem so fundamental and so pervasive. and it is politics that intrudes as a special factor at every stage in public-sector disputes. Thus it seems more accurate to term the entire process political rather than collective bargaining, to emphasize the differences from rather than the similarities to the private-sector system of negotiation. Market forces still have some role to play, but it is political decisions that are the more decisive to the outcome.
61. Therefore, the Petitioner union having enjoyed such patronages earlier will also at some time will be at its receiving end when its party loses its political power. The only way for removing such vagaries and stop political patronages is to make institutional reforms in the area of industrial relations, instead of enjoying such privileges while in power and lamenting later when such political power is lost.
62. Professor Pramod Verma of the Indian Institute of Management, Ahmedabad in his book on "Industrial Labour in India, An Empirical Approach", Oxford &IBH Publishing Company Pvt. Ltd. (1992) in the concluding portion of his book [page 231] made the following poignant observations:
..The current weaknesses of the trade union movement, including apathy of workers towards the unions, interunion rivalry, and fragmentation along political lines, need to be seriously considered and appropriate actions initiated by the unions themselves with a view to assuming an important place in the industrial relations community.
Under the present system of industrial relations, the state seems to be more of a participant than a facilitator in developing relationships between employers and employees. The state plays a direct role in the case of government employees, departmental undertaking and public sector enterprises. It also intervenes in the industrial relations system through an industrial relations machinery or through the legal superstructure built in accordance with the labour laws. The present role of the state may be defended on the ground that both managements and unions are not yet mature enough to structure their own relationships and that the state which represents the interests of the community as a whole, cannot remain a mere spectator when union-management confrontations disrupt the economic life of the nation. If such an argument is to be followed to its logical end, it would imply a ''statised'' system of industrial relations. It may, therefore, be asked whether such a system could work, particularly when other sub-systems of the society continue to exist on a democratic basis. Moreover, the present role of the state assumes certain characteristics of unionism and managerial behaviour which are now becoming increasingly irrelevant with the efficiency level of the industrial relations machinery which does not exist. It was in this context that the National Commission on Labour had strongly urged a radical change in the structure of the industrial relations machinery. The state policy may therefore have to be reoriented towards positive action than at political intervention in day-to-day events in industrial relations.
(Emphasis added)
63. Therefore, the claim made in the present case, the status claimed by the Petitioner union as a sole bargaining agent only because they got elected in a secret ballot without its role not limited to wage negotiations and their further contention that they will have right as that of a representative union as available under the BIR Act without there being law in the State cannot be countenanced by this Court. That was why the earlier division bench in K.V. Sridharan''s case (cited supra) said that such writ petition claiming recognition through court order can never be permitted in the absence of law on the said subject.
64. Ultimately, it is for the State legislature to make a law on the subject relating to trade union recognition. Further in the present case, the status of the Petitioner union itself as a leading union has become a doubtful proposition, because of its dwindling membership as shown in the tabular statement produced by the transport department quoted elsewhere. Its status as a sole bargaining unit is not recognised in any law. Except for an interim order in a writ petition followed by a Government Order, it cannot assert its rights to the detriment of other Trade Unions. In any event, the sweeping prayer made by the Petitioner union cannot be countenanced by this Court. In the absence of any legal or enforceable right on the part of the Petitioner union, the prayer of the Petitioner union cannot be countenanced by this Court. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
