THE HONBLE THE CHIEF JUSTICE This writ petition raises an important question with respect to the procedure for recognition of a trade union as the representative body of workmen in an industry in the absence of a specific statutory provision of law.
2. MRF Limited (Madras Rubber Factory) is a leading Tyre manufacturing company situated in Ichiputhur Village of Arakonam Taluk in Vellore District of Tamil Nadu. It is having its Corporate Office in Chennai. It employs around 1500 workmen in different capacities, and it is one of the major industrial units situated in the vicinity of Chennai.
3. The appellant/petitioner is a Registered Trade Union, which claims to represent majority of the workmen functioning in this industry. Respondent No.6 is another Trade Union, which also claims to have majority membership. Respondent No.4 is the Management of MRF Limited and Respondent No.5 is its Plant Manager. Respondents 4 and 5 are stated to be entertaining Respondent No.6 and not the petitioner for the purposes of negotiations and settlement.
4. The Petitioner Union was registered under the provisions of the Trade Unions Act, 1926 on 29th December, 2003, and claims to be representing the causes of the workmen. It is the case of the Petitioner Union that Respondent No.4-Management has not been giving fair wages to the workmen, that it has been paying piece rate wages and is indulging in Unfair Labour Practices and acts of discrimination against the Petitioner Union and its office bearers.
5. In February, 2004, the Petitioner Union wrote to Respondents 4 & 5 that since it is representing nearly 898 of the 1029 permanent workmen of the company, it be recognized as the representative union, and another Union, which was being entertained by the Management at that time namely, MRF Cycle Tyre Unit Employees Association, be not permitted the facility of deduction of membership fees from the wages of the employees. The Management did not entertain that request, nor did it recognize the Petitioner Union. Agitated over the same, the petitioner filed a Civil Suit before this Court for a declaration that it is the majority union, but the said suit was not entertained on the ground that the High Court did not have the territorial jurisdiction to entertain the suit.
6. On 17th May, 2004, the Petitioner Union wrote to the Commissioner of Labour, Chennai seeking determination of its majority on the basis of a secret ballot. But the Commissioner of Labour wrote back on 30th June, 2004 stating that there was no law providing for any such determination. The Petitioner Union raised a charter of demands on 25th November, 2004. Meanwhile, Respondent No.4 entered into a settlement with the above referred MRF Cycle Tyre Unit Employees Union on 22nd December, 2004. The Petitioner Union raised an Industrial Dispute before the Deputy Commissioner of Labour questioning the validity of this settlement. The Petitioner Union also expressed its willingness to prove its majority by a secret ballot. This submission was made during the conciliation proceedings.
7. In May, 2006, Respondent No.4-Management announced that majority Union will be decided by a secret ballot. It is, however, the case of the Petitioner Union that though its representatives got elected by a huge margin, it was not to the liking of the Management and hence it asked the newly elected office bearers to resign. It is at that stage that Respondent No.6-Union has been registered in July, 2006 and it has been given the facility of deduction of membership fees from the wages of the workmen.
8. It is the case of the Petitioner Union that since it had no other remedy, it lodged a complaint before the Committee on Freedom of Association, which is a Committee of the International Labour Organisations Governing Body (in short ILO). The complaint was registered as Case No. 2512(India). In view of the complaint being taken up by the ILO, the Labour Officer, Vellore was directed by the Government of Tamil Nadu to enquire into the complaint and submit a report. The Labour Officer Mr.Dharmaseelan gave a report dated 27th/28th March, 2007 accepting the claim of the Petitioner Union that it was the majority union. The Petitioner Union got a copy thereof only after applying under the Right to Information Act, 2005.
9. In November, 2007, the 348th Report of the Committee on Freedom of Association in respect of the above Case No.2512 (India) was published. In paragraph-904 of the said report, the Committee stated that the determination of the most representative trade union by a secret ballot was not only an accepted one, but also a desirable way to choose a collective bargaining agent. The Committee also stated that it had found that the Petitioner Union has more than 70% membership of the total permanent workers, and it recommended the Government to take appropriate measures in that behalf. The Commissioner of Labour, Chennai, however, wrote to the Petitioner Union on 18th April, 2008 stating once again that there was no specific law for recognizing the Trade Union in the State of Tamil Nadu, though the Petitioner Union could submit a petition to the State Evaluation and Implementation Committee. That led to the filing of Writ Petition No.17991/2008 by the Petitioner Union seeking a direction to implement the recommendation of the Committee on Freedom of Association in Case No.2152 (India). The Petitioner Union also filed M.P.No.1/2008 to restrain Respondent No.4 from entering into any settlement with Respondent No.6-Union.
10. During the pendency of the writ petition, an interim injunction was granted 28th July, 2008. The Petitioner Union took out another miscellaneous petition viz., M.P.No.2/2008 on 22nd October, 2008 to restrain Respondent No.4-Management from making any deduction from the wages of its members in favour of Respondent No.6. It is the case of the Petitioner Union that the Committee on Freedom of Association in its 351st Report, which was published in November, 2008, reiterated that the Petitioner Union should not be driven to take recourse to the procedure suggested by the State Government as prescribed under the Code of Discipline for determining the representative status, as the said procedure is only recommendatory. This code is evolved and ratified by the Indian Labour Conference in its 16th Conference held in May, 2008, which came into force from 1st June, 1958. The conference consists of all Central Employers and Workers Organisation and Government representatives and it provided for the recognition of trade union on the basis of verification of the record of their membership. The Committee once again reiterated its recommendation for recognizing the Petitioner Union. On 15th April, 2009, Respondent No.6-Union filed V.M.P.No.1/09 to vacate the injunction earlier granted on 28th July, 2008 in M.P.No.1 of 2008. A learned single Judge who heard the matter vacated the order of interim injunction on 15th May, 2009. Respondent No.4-Management is reported to have imposed a lock out thereafter which continued till 27th May, 2009. The aforesaid interim order of vacating the injunction led to the filing of the present writ appeal in W.A.No.674 of 2009.
11. The Writ Appeal came up before a Division Bench during summer vacation on 15th May, 2009, which Bench directed the parties to maintain status quo in respect of the settlement dated 9th May, 2009. Thereafter, the matter came up before this Bench on 9th June, 2009. Learned senior counsel appearing for Respondent No.4 submitted that around 765 workmen had signed that settlement prior to the grant of order of status quo and that some 115 more workers were also agreeable to take the benefits of that settlement. This was disputed by the learned senior counsel appearing for the petitioner/appellant.
12. It is the case of the appellant that in the meanwhile there was further agitation by the workmen and there was laticharge on the workers on 20th May, 2009, whereas it is the case of the Management that the workmen have subsequently taken law into their hands and damaged the Corporate Office. On this background, it was thought fit that the writ petition itself be heard and decided finally along with the writ appeal. Accordingly, with the consent of the parties, the writ petition was taken up before this Division Bench and arguments of the counsel for all the parties were heard.
13. Learned counsel for Respondent Nos.4 & 5 has filed written arguments on 4th August, 2009. The learned counsel for the petitioner has filed her written arguments on 6th August, 2009, and the counsel for the 6th respondent has filed his written arguments on 11th August, 2009.
14. Factual Scenario -
The Petitioner Union is contending that the service conditions of the workmen in the Respondent 4 Management are not satisfactory, considering the financial strength of the company. It is contended that any time an attempt is made to seek improvement in their service conditions by a genuinely representative trade union, the Management comes down on the representatives of the workmen some way or the other. It is submitted that the Management sees to it that no such trade union gets any hold, and is reluctant to negotiate with any such trade union, leave aside recognizing it as a representative of the workmen. It is submitted in this behalf that when an attempt is this behalf was made earlier, another union namely, MRF Cycle Tyre Unit Employees Union was supported by the Management, and now that the Petitioner Union is representing the majority of the workmen, Respondent 4-Management is supporting the Respondent 6-Union. It is their case that since the Labour Department of the State Government was not supportive; the Petitioner Union was constrained to lodge a complaint to the Committee on Freedom of Association of the ILO. The Committee has given two reports, firstly the 348th Report in November 2007 and thereafter, the 351st Report in November, 2008. The ILO has collected the information from Mr.Dharmaseelan, Labour Officer, Vellore, who has found that more 70% of the total permanent workmen were members of the Petitioner Union. It is observed by the Committee in its 348th Report that the determination of the most representative trade union by a secret ballot was not only an accepted one, but also a desirable way of choosing a collective bargaining agent. After the report of Mr.Dharmaseelan, in its 351st Report, the Committee has observed that the Petitioner Union should not be driven to take recourse to the procedure prescribed under the Code of Discipline, since that procedure is recommendatory in nature.
15. As against this submission of the Petitioner Union, the 6th Respondent-Union submits that out of some 1400 confirmed workmen of the Company, 1249 are its members and that it is a majority union, which was recognized by the Management, immediately after it was formed, as the sole bargaining agent. It is submitted that after the formation of the 6th respondent-union in the year 2006, the workmen who joined this Union have given their individual letters in writing to the 5th respondent-management authorizing it to deduct their subscription from their monthly wages and this Union is enjoying what is called check-off facility, which will prove its membership strength. It was also contended that the bonus and all other issues of the workmen are amicably settled with the Management.
16. The previous agreement, governing the service conditions, is stated to have expired on 31st December, 2008 and the 6th Respondent -Union has entered into a settlement with the Management on 9th May, 2009. This Union contends that 765 workmen have given individual letters agreeing to abide by the terms of the settlement dated 9th May, 2009, and the Management has extended the benefit of settlement to them. The Management has, however not extended it to some 157 workmen in view of the order of status quo granted by the Division Bench of this Court, though they were ready and willing to take the benefits. The settlement has been signed after the interim order granted earlier by the learned single Judge was vacated by the impugned order dated 5th May, 2009. The 6th respondent is relying upon the letters given by the workmen, which are attested by a Notary, as against which the Petitioner Union is very much disputing the authenticity of those notarised letters. This Union further states that though the Petitioner Union called for a strike, some 900 workmen out of the 1400 workmen reported for work every day. It is submitted that this can also be seen from the punching on the cards made by the workmen when they enter the factory as soon as the shift starts. This Union denies the allegation that the signatures of the workmen are not genuine. This Union submits that the Settlement Deed dated 9th May, 2009 is a settlement under Section 18(1) of the Industrial Disputes Act, 1947 (in short the Act), which is binding only on the parties to the settlement. In case the Petitioner Union is not satisfied with it, it is open to the Petitioner Union to challenge the same under the Act. This Union submits that the Petitioner Union is trying to create a rift among the workmen with a view to gain foot hold in the company. This Union denies that it is a puppet union put up by the Management.
17. As far as the Management is concerned, it denies the allegation that it is harassing the workmen, who join the Union not liked by the Management. According to the Management, the service conditions of the workmen have been good and have considerably improved in view of the settlement of 9th May, 2009 and that majority of them have accepted it voluntarily and if the Petitioner Union is unhappy about it nothing prevents it from challenging the settlement by raising a dispute under the Industrial Disputes Act. It is submitted that it is the discretion of the Management to recognize a Union as it thinks proper and it will recognize the Union which fosters industrial peace and not the Petitioner Union which is disturbing the industrial peace in the factory. The Management has drawn our attention to the incidents of strike, agitations and violence resulting into loss of production on number of occasions.
18. Legal Submissions:
The Petitioner Union submits that the right to form association is protected under Article 19(1)(c) of the Constitution of India and to establish employer-sponsored trade unions of workmen is specifically mentioned as an Unfair Labour Practice under Item-3 of the fifth Schedule of the Act. The various Unfair Labour Practices on the part of the employers and associations of employers mentioned in the first part of the fifth schedule of the Act are clearly deprecated under the Act and Section 25-T of the Act prohibits Unfair Labour Practice and a penal provision is made under Section 25-U of the Act. Learned senior counsel for the Petitioner Union has drawn our attention to the judgment of the Apex Court in Visaka v. State of Rajasthan, 1997 (6) SCC 241 to submit that in judicial construction regard must be had to international conventions and norms. Similar is the view in Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625 (see para-28 of the judgment).
19. Article 51-c of the Constitution requires the State to foster respect for international law and treaty obligations. International norms with respect to recognition of trade union have been stipulated in paragraph-904 of the 348th Report of the Committee. One basic norm is that the employer should recognize an organization, which is representative of the workers for the purpose of collective bargaining, and the organization to be recognized for that purpose must satisfy the two criteria, namely, it must be representative and independent. The report also lays down the norms for the determination of the most representative trade union by a secret ballot is not only an acceptable one, but a desirable way to ensure the workers rights to choose their organization.
20. As against this submission of the Petitioner Union, the Management as well as the 6th respondent submits that the Management cannot be forced to recognize any particular Union and in fact, it is a matter of discretion for the Management to recognize any particular Union, more particularly when there is no statutory provision. In support of this submission, the respondents relied upon the dicta of the Apex Court in Bal Ram Bali v. Union of India reported in 2007 (6) SCC 805 wherein it has been held that no such prayer should be granted which would amount to issuing directions to the State Government to frame a law as the same is not within the purview of the Courts.
21. As far as the State Government is concerned, in the counter filed by one S.Arumugam, affirmed on 19th August, 2008, it is stated in para-38 as follows: -
More over there is no law for Recognition of a trade union in the State of Tamil Nadu. With reference to the Trade Union, claiming to be a sole bargaining agent, a procedure has been laid down as per the Code of Discipline and the process emanates by submitting a petition before the State Evaluation and Implementation Committee. The Petitioner Union has to undergo the procedure laid down as per the Code of Discipline to claim the status of sole representative of workers in collective bargaining.
22. We have considered the factual situation, as well as the submission of the parties before us. MRF is a major industrial unit situated on the outskirts of Chennai city, which has around 1400 permanent workmen, and further temporary work force as required from time to time. It is one of the oldest companies in the vicinity of Chennai. Although it is contended by the Management that the service conditions are good and that it cannot give anything more than what it has agreed in the settlement of 9th May, 2009, the fact remains that there is a large section of workmen which appears to be dissatisfied with the terms of the settlement. The genuineness of the notary letters tendered by the 6th respondent is seriously disputed by the Petitioner Union. It is another matter that if the Petitioner Union is dissatisfied with the terms of the settlement, its remedy is to terminate the same and invoke the machinery provided under the Act. At the same time, the fact remains that there has been continuous strife in this company leading to agitations by the workmen resulting in production coming to a halt. Either a good section of the workmen have gone on strike or the Management has declared lock out and the Management has been initiating action against the workmen whom the Petitioner Union claims to be the genuine representative of the workmen. Much of the problem appears to be because of the workmen not having a truly representative and independent union to address their cause. As set out earlier one attempt was made in this behalf in May, 2006 by holding a secret ballot, but since the representatives elected were not to the liking of the Management, they were asked to resign and the sixth respondent has been given the facility of deduction of membership fees from the wages of the workmen.
Desirability of having a representative union recognized:-
23. The desirability to have a truly independent and representative union of workmen to represent their cause cannot be lost sight off. A Management may think that the leadership of a particular trade union is militant, yet even such a union when it obtains a recognised status, it has to act within the four corners of law and discipline. Where the number of workmen is very large, it is also in the interest of the Management to have a truly representative collective bargaining agent to represent the workmen so that the Management can discuss with it the problems governing the production and industrial peace, and the decisions arrived at will have to be accepted by all the workmen. This being so, the question as to who should be the representative of the workmen is an aspect which has to be decided by the workmen themselves. It cannot be left to the Management that it will recognize a particular Union which it considers to be representative of the workmen. The Trade Unions Act, 1926, which is an Act to provide for the registration of Trade Union, is there on the statute book for the last over 80 years. It is no longer permissible nor possible for any management to disregard a trade union registered under the Act, and having a large following. If it does so, it would be at its own peril.
24. The fact that there should be a recognized union of the workmen can clearly be seen from various statutory provisions. Thus, as noted earlier, Article 19(1)(c) of the Constitution gives the right to the workmen to form association. The Industrial Disputes Act, 1947 has now introduced the concept of Unfair Labour Practice and Section 25-T of the Act prohibits Unfair Labour Practice on the part of the employers, workmen and also the trade union. Section 25-U of the Act provides that any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.
25. Unfair Labour Practice is defined in Section 2(ra) of the Act to mean any of the practices specified in the fifth schedule. The first part of the fifth schedule enumerates unfair labour practice on the part of the employers and the trade union of the employers. The first four items of the first part of unfair labour practice provides as follows: -
1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organize, form, join or assist a trade union or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, that is to say-
(a)threatening workmen with discharge or dismissal, if they join a trade union,
(b)threatening a lock-out or closure, if a trade union is organized,
(c)granting wage increase to workmen at crucial periods of trade union organization, with a view to undermining the efforts of the trade union organization.
2.To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say--
(a)an employer taking an active interest in organizing a trade union of his workmen; and
(b)an employer showing partiality or granting favour to one of several trade unions attempting to organize his workmen or to its members, where such a trade union is not a recognized trade union.
3.To establish employer sponsored trade unions of workmen.
4.To encourage, or discourage membership in any trade union by discriminating against any workman, that is to say
(a)discharging or punishing a workman, because he urged other workman to join or organize a trade union,
(b)discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act),
(c)changing seniority rating of workmen because of trade union activities,
(d)refusing to promote workmen to higher posts on account of their trade union activities,
(e)giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union,
(f)discharging office-bearers or active members of the trade union on account of their trade union activities.
Item-15 of this Schedule is also relevant in this behalf, which provides that the following practice is an unfair labour practice:-
15. To refuse to bargain collectively, in good faith with the recognized trade union.
26. From the above items, it is clear that a Management is not expected to interfere with the rights of the workmen to organize themselves into a trade union. The Management is also not supposed to dominate, interfere or to contribute support, financial or otherwise, to any trade union. The Management is not expected to establish employer sponsored trade unions of workmen, and it is also not supposed to encourage or discourage membership to any union by taking the various steps which are mentioned in item-1. Item 15, which is mentioned above, clearly speaks of a recognized trade union. It clearly lays down that to refuse to bargain collectively even in good faith with a recognized trade union is an unfair labour practice. It is clear that there is a concept of a recognized trade union under the Act. In the instant case, it is the stand of respondents 4 and 5 that it will decide as to who should be the representative of the trade union of the workmen and they will discuss the demands of the workmen only with them. Obviously this approach is contrary to the letter and spirit of the statute.
27. Now, if we look into the first four items of this schedule, it is very clear that the Management is not expected to interfere with the right of the workmen to organize themselves into a trade union in any of the manners mentioned therein or also to establish an employer sponsored trade union of workmen. If the Management takes a stand that it will decide as to which Union is the representative of the union of the workmen and recognize them, obviously it will mean to interfere with the right of the workman to organize themselves into a particular union for the purposes of collective bargaining. All these items clearly imply that under the Act what is contemplated is an independent and truly representative collective bargaining agent of the workmen, which is to be decided by the workmen and such agent has to be recognized as the representative of the union of the workmen and the Management cannot refuse to bargain collectively even in good faith with such trade union. Thus, the idea of a trade union decided by the workmen as their collective bargaining agent is clearly writ large on the fifth schedule. Any other interpretation of this item would be clearly to defeat the purpose in introducing this schedule, which has been introduced with effect from 21st August, 1984 by the Amendment Act 46/1982. Looked at from this point of view, it is the right of workmen to decide which Union should be their representative and once they take that decision by a procedure accepted by law, the Management cannot refuse to recognize it.
Method of recognizing a representative Union:
28. The question then to be considered, however, is with respect to the method by which the representative union is to be determined so as to grant recognition. The two methods, which are presently available, are either on the basis of a ballot, which is recommended by the aforesaid committee on Freedom of Associations of the ILO or the method of verification of membership, which is accepted in the earlier referred to Code of Discipline. Ballot is not foreign to the Industrial Disputes Act either. The representative of the workmen on the Works Committee under Section 3 of the Act are to be elected in the manner provided under Part VII of the Industrial Disputes (Central) Rules, 1951. This problem comes up in the present case concerning this particular company, which is situated in the State of Tamil Nadu, since there is no specific provision making a particular method to be mandatory. It is due to this reason that when the matter was heard before this Bench, we appealed to all the parties before us through their counsel to agree for one of the two methods. As far as the Petitioner Union is concerned, it undoubtedly showed its preference for a ballot, which was opposed by the sixth respondent-union as well as by the Management. As far as the other method namely, that of verification of membership is concerned, without prejudice to its original insistence on ballot, the Petitioner Union appeared to be agreeable, provided the Management and the sixth respondent also agreed thereto. Strangely enough the sixth respondent-union has refused to accept this method as well, though it is claiming to have a majority following in the Respondent 4-Company. The State Government, of course, indicated its preference for verification method, inasmuch as it has been accepted by the Conference of the Employers Associations and Trade Unions and the Government in the Tripartite Conference held way back in the year 1958, and which method is being followed in a number of companies. The submission of Respondent 4-Management was that it is for the company to decide as to whom it will recognize as the representative of the trade union and in the absence of any specific statutory provision; it cannot be forced to recognize any particular union as the representative of the workmen. On this background, it will be desirable to look to the legal position in his behalf.
29. The question is as to how this collective bargaining agent is to be decided. The Petitioner Union has undoubtedly preferred to the norms which are accepted by the Committee of ILO. The Petitioner Union points out that it has been a practice to lodge such complaints to the aforesaid Committee and it has pointed out that some 66 complaints have so far been referred by the Unions in India to this Committee, which include the complaint against the companies like Hindustan Lever Limited, being Case No.1651 (India) and against Fort Aguada Beach Resort, a subsidiary of Taj Hotel Group, being Case No.1890 (India). This is only to point out that the forum of this Committee has been used as against private companies in India in the past.
30. As far as the jurisdiction of this Committee is concerned, it has been submitted on behalf of respondents 4 and 5 that although India is a member of ILO, there is no convention of the General Assembly of the ILO, which deals with the manner of recognistion of trade unions. It is submitted that the suggestions of the Committee is merely recommendatory in nature and does not have any binding force, and this Court cannot enforce those recommendations by issuing any writ or direction. It is submitted that this would amount to legislation by the Court, which is criticized by the Apex Court in Bal Ram Bali v. Union of India (supra).
31. As against this submission of Respondents 4 & 5, the Petitioner Union points out that Article 51(c) of the Constitution mandates that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another. In Visaka v. State of Rajasthan (supra), the Court was concerned with the issue of gender equality. In the absence of a domestic law, the Apex Court has laid down certain guidelines in this behalf, and relied upon the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), to which, ofcourse, India was a signatory. It is, however, material to note that while referring to the requirement to foster respect for international law, the Court referred to the International Conventions and the Norms, which is clear from paragraphs 7 & 14 of the aforesaid judgment. Para-14 of the judgment, which is relevant for this purpose, reads as follows: -
The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.
32. The Petitioner Union therefore submitted with good force that the preference for the method of ballot was laid down as a norm in that behalf in the 348th Report of the Committee. It was pointed out in that behalf that the Labour Officer Mr.Dharmaseelan was asked to make an enquiry and he has reported that 70% of the workmen were members of the Petitioner Union. He has also reported that there were acts of suppression on the part of respondents 4 and 5. The Petitioner Union particularly emphasized the observations of the Committee in the 348th Report, which is to the following effect: -
In order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied; representative ness and independence. The determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity. It was, therefore, submitted on their behalf that it was an international norm recognized that the trade union to be sole collective bargaining agent must be representative and independent. Thereafter reference was made to para-904 where the Committee has observed that determination of the most representative trade union by secret ballot is not only accepted, but also found to be a desirable way to ensure that the workers exercise their right to choose their organization which shall represent them in collective bargaining. The Petitioner Union has also placed material on record to point out that the ILO has come out with a publication entitled Right to Collective Bargaining of ILO Standards and the Principles of Supervisory Bodies in the year 2000 containing the summary of the ILO principles on the right to collective bargaining. Chapter-16, thereof, has been pressed into service before us. The first three clauses of this chapter are as follows: -
SUMMARY OF THE ILO PRINCIPLES ON THE RIGHT TO COLLECTIVE BARGAINING.
To resume the previous chapters, the standards and principles emerging from the ILOs Conventions, Recommendations and other instruments on the right to collective bargaining, and the principles set forth by the Committee of Experts and the Committee on Freedom of Assoiation on the basis of these instruments, may be summarized as follows: -
A.The right to collective bargaining is a fundamental right endorsed by the members of the ILO in joining the organization, which they have an obligation to respect, to promote and to realize, in good faith (ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up) B.Collective bargaining is a right of employers and their organizations, on the one hand, and organizations of workers, on the other hand (first-level trade unions, federations and confederations); only in the absence of these latter organizations may representatives of the workers concerned conclude collective agreements.
C.The right to collective bargaining should be recognized throughout the private and public sectors and it is only the armed forces, the police and public servants engaged in the administration of the State who may be excluded from the exercise thereof (Convention No.98)
33. The Petitioner Union has brought to our notice that in some of the States there are specific statutory provisions relating to recognition of trade unions such as in the States of Maharashtra, Gujarat and Madhya Pradesh, etc. A specific reference is made to the provisions of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 where under the method of deciding the collective bargaining agent is on the basis of the larger membership of the trade union concerned though not on the basis of the ballot, which can be seen from Chapter-III of the Act and which applies to those undertakings wherein 50 or more persons are employed. Similarly, under the Bombay Industrial Relations Act, 1946, which applies to specific industries in Maharashtra and Gujarat, the recognition of the collective bargaining agent is on the basis of the larger membership arrived at on the basis of the verification. Similar is the provisions in the Madhya Pradesh Act. In the matter before us, the State Government has undoubtedly referred to and relied upon the Code of Discipline where in Appendix-IV of that Code of Discipline, the procedure for verification of membership of union has been laid down. Under clause-2 of that procedure, the Chief Labour Commissioner has to arrange the verification of membership of the unions entitled to recognition. Under clause-3 they have to submit a list of their members who have paid subscription for atleast 3 months during the period of six months immediately preceding the date of reckoning along with the membership register, counter foils, cash and account books, bank books and the constitution of the union. Under clause-5 the verification officer has to check the list of members and then under clause-6, he has to inform the union in writing that the verified list of the respective members are ready for inspection. Under clause-7 the unions are free to submit their objections and thereafter the objections received from the unions are to be verified by personal interrogatories as specified in clause-7 thereof.
34. In Balmer Lawrie Workers Union v. Balmer Lawrie & Co. Ltd., reported in 1984 (Supp) SCC 663, the Apex Court was concerned with the validity of the provisions of the above referred Maharashtra Act. In para-12 of the judgment, the Apex Court referred to the recommendation of National Commission of Labour, and then observed as follows: -
A need was felt that where there are multiple unions seeking to represent workmen in an undertaking or in an industry, a concept of recognised union must be developed. Standing Labour Committee of the Union of India at its Twenty-ninth Session held in July 1970 addressed itself to the question of recognition of trade union by the employer. In fact even amongst trade union leaders there was near unanimity that the concept of recognised union as the sole bargaining agent must be developed in the larger interest of industrial peace and harmony. National Commission on Labour chaired by late Shri P.B. Gajendragadkar, former Chief Justice of India, after unanimously and whole heartedly expressing itself in favour of the concept of recognised union and it being clothed with powers of sole bargaining agent with exclusive right to represent workmen, addressed itself only to the question of the method of ascertaining which amongst various rival unions must be accorded the status of a recognised union. Planting itself firmly in favour of democratic principle, it was agreed that the union which represents the largest number of workmen working in the undertaking must acquire the status as that would be in tune with the concept of industrial democracy. The fissures arose as to the method of finding out the membership. The Commission had before it two alternative suggestions for ascertaining the membership, (i) verification of membership by registers and (ii) by secret ballot. As there was a sharp cleavage of opinion, the Commission left the question of adopting one or the other method in a given case to the proposed Industrial Relations Commission which was recommended to be set up if the recommendations of the Commission were to be accepted. What is of importance to us is that everyone was agreed that where there are multiple unions 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 the industrial undertaking or in the industry.
35. In Food Corporation of India Staff Union v. Food Corporation of India and others reported in 1995 (II) LLJ page 272 also the Apex Court observed that 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 its members in 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 employers should bargain or to put in differently, who should be the sole bargaining agent, has been a matter of discussion and some dispute. In the aforesaid judgment, the Apex Court has observed that the check-off system has lost its appeals and the method of secret ballot was being gradually accepted. That was however a case where the method was agreed by consent.
36. Quite contra is the view of the Apex Court in Automobile Products of India Employees Union v. Association of Engineering Workers, Bombay and others reported in 1990 (2) S.C.C 444. In the aforesaid case, the matter arose from the provisions of the M.R.T.U and P.U.L.P Act. The recognition of unions under the M.R.T.U and P.U.L.P Act is covered by Sections 10 to 18 of the Act. It is relevant to note that the provisions of M.R.T.U and P.U.L.P Act has granted statutory recognition to the method of verification of membership to determine the majority character of the union. The procedure laid down for verification is based on the membership, six months previous to the date of application. The respondent-union there was the recognized union. The appellant-union claiming majority of membership applied for cancellation of recognition of the first respondent-union. The application by appellant-union was allowed, which was however set aside by the High Court. On appeal, the Supreme Court noted that though there was a strong demand from some sections for recognizing the bargaining agent of the workmen by a secret ballot or otherwise, the National Labour Commission did not countenance it for certain obvious reasons. It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, for industrial peace and stability and endanger the interests of the workers, the employers and the society as a whole. The Supreme Court, after examining the various provisions, held that what the Industrial Court did by permitting recognition of the union by secret ballot, was by a method clearly derogatory to the Act. The Supreme Court further observed as under: -
However, overwhelming, therefore, the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act.
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 details 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 followed in different undertakings. Further, it is also in tune with the provisions of the different statutes in different States.
38. In the circumstances, in our view, the only alternative, as stated above, is to direct the State Government and the Commissioner of Labour to conduct the exercise as per the Code of Discipline, to which the State Government is agreeable. Accordingly, the Petitioner Union may apply to the concerned Labour Commissioner within two weeks from today presenting the claim of its membership figures during the last six months i.e., for the period from 1st march, 2009 to 31st August, 2009. On receipt of such an application, the concerned Labour Commissioner will issue notice to the two unions, within two weeks from the date of receipt of the application, calling upon them to submit their membership registers and the necessary supportive documents under the Code of Discipline within two weeks from the date of receipt of the notice by them. The notice will call upon them to produce their records as per the Code of Discipline during the period of six months prior to the date of notice. The Labour Commissioner shall thereafter proceed to decide as to which Union is the representative union of the workmen. We cannot permit the Management to say that the Union which shows the larger membership at the end of the exercise will not be recognized by the Management. Recognition is for the purpose of representing the causes of the workmen in various fora including before the Management and various authorities under the Labour Law. It is not a determination available for the sole satisfaction of the Management. It is a factual determination and the determination leads to a status. The Union which establishes a larger membership at the end of the aforesaid exercise, shall be recognized as the representative union.
39. The writ petition is allowed with the aforesaid directions. In view of the disposal of the writ petition with the directions specified above, the writ appeal stands disposed of. The miscellaneous petitions will stand disposed of. Those workmen who want to avail the benefit of the settlement will be free to accept it, though it will be open to the petitioner union to challenge the legality and validity thereof by taking appropriate steps by raising demand and carrying the matter to the Industrial Tribunal.
40. The writ petition is accordingly allowed, though we refrain from awarding any costs. The writ appeal stands disposed of.
pv/-
Copy to:
1. Government of Tamil Nadu, Rep. by its Secretary, Labour and Employment Department, Fort.St.George, Chennai 600 009.
2. Union of India, Rep. by its Secretary, Ministry of External Affairs, New Delhi.
3. The Secretary, Ministry of Labour, Shram Shakti Bhavan, New Delhi
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