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Judgment
Gita Mittal, J.—By way of this writ petition, the National Federation of Telecom Employees (petitioner No. 1) a registered All India Trade Union Organisation of Employees working with the Bhartiya Sanchar Nigam Limited is challenging the grant of facilities by the Bhartiya Sanchar Nigam Limited(respondent No. 1 herein) to BSNL Employees Union (respondent No. 2 herein). The writ petition is based on the plea that the respondent No. 2 is not a registered trade union in its own right but is a consortium, that such a consortium is not entitled to be treated as a majority trade union representing the interests of the employees of the respondent No. 1, and that grant of facilities to respondent No. 2 is in violation of the Code of Discipline which is applicable to the relationship between the respondent No. 1 and its recognised trade unions and also in violation of the circular dated 25th November, 2004 issued by the respondent No. 4.
There is no dispute to the material facts and to that extent that the parties are at idem. Bhartiya Sanchar Nigam Limited, respondent No. 1, came into existence only on 1st October, 2000. The National Federation of Telecom Employees NFTE, petitioner No. 1 is a registered trade union of employees of the respondent No. 1 having registration No. 4906/2000 and came into existence on 17th September, 2000. It is contended that the petitioner No. 1 has branches all over the country. The National Federation of Telecom Employees is the Delhi circle office of the petitioner No. 1 at the local level. After the constitution of the respondent No. 1, nearly 3.5 lakh employees working in the erstwhile Department of Telecom Services and Department of Telecom Operations were transferred on deemed deputation to it. Approximately 3 lakh group C and D employees all over India so brought out of these two departments exercised an option for absorption in the Bhartiya Sanchar Nigam Limited in March, 2001.
It is averred that in order to resolve several questions relating to terms of employment/absorption and other allied issues, a process for membership verification for reorganization of a majority trade union was deemed necessary. The management of the respondent No. 1 consequently held meetings with all the federations/associations/unions as had existed in the two erstwhile departments. One such meeting was held on the 27th February, 2001 in which representatives from the Ministry of Labour were also present. A decision for membership verification for elections for determination of the majority representative union was taken. It was decided that such election would be by a secret ballot as per the procedure laid down by the Ministry of Labour. It was directed by the Ministry that only such unions which observed the Code of Discipline would be entitled for participation in the verification process.
The process for election was evolved at the 16th Session of the Indian Labour Conference held in May, 1958. As per the procedure prescribed at this Conference, it is a union securing majority votes subject to a minimum of 15% of the votes which becomes eligible for recognition at the all-India level.
At the same time, a union which secures 50% of the votes in the circle would have the right to deal with the matters of purely local interests. Such matters would include matters relating to handling of grievances pertaining to its own members.
In the meeting held under the chairmanship of chairman cum managing director of the respondent No. 1 on 27th February, 2001, inter alia, the following decisions were taken:
Whether the proposed membership verification is to be conducted through the secret ballot under the auspices of Ministry of Labour or through check off system to be conducted by the BSNL.
It was unanimously agreed that the proposed verification for election of a majority recognized union should be conducted through secret ballot as per the procedure laid down by the Ministry of Labour.
Agreement to abide by the results of the elections declared by the authorized officer of the Ministry of Labour.
It was informed by the representatives of the Ministry of Labour that only those unions which observe Code of Discipline would be entitled for participation in the verification process for recognition as mention in Annexure I of Code of Discipline (Criteria for recognition of unions).
Finalisation and signing of the Code of Discipline to be followed by unions/associations and BSNL management.
Though there were some reservations in some quarters on the issue, the proposal was agreed to by and large on clarification given by the representatives of Ministry of Labour and agreeing to the Code of Discipline is a prerequisite and no changes in the same can be made as the same had been finalized as per the deliberations in the ILC and moreover it was equally binding on the union(s) and the management.
The Chief Labour Commissioner (Central) issued a clarification that "Telecom" is to be treated as an "industry" and the "BSNL" as an "establishment".
Keeping in view the all India status of the telecom industry and the Bhartiya Sanchar Nigam Limited establishment, it was agreed by the Chief Labour Commissioner (Central) and the management of the respondent No. 1 to treat the each of the nine telecom circles as a unit. Accordingly, as per the agreement noticed above and as per the Code of Discipline, only such union which secured majority votes subject to a minimum of 15% votes at the all India level could be granted recognition in the respondent No. 1. Other than the majority representative union, a unit which secured 50% votes or more in a circle would have a right to deal with the matters of local interests of its members with the local organization .
It is manifest thereby that in addition an all India level recognition to a trade union, recognition was also given to the circle level organisation. While the recognised majority representative union at the all India level could also be having majority or having the support of 50% of votes in a circle and hence be the circle representative as well, however the same could very well be two different trade unions.
The material stipulations in the Code of Discipline for the Criteria For Recognition Of Unions were as under:
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.
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 subscription for at least three months during the period of six months immediately preceding the reckoning.
Where there are several unions in an industry or establishment, the one with the largest membership should be recognised.
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% 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.
Only unions which observed the Code of Discipline would be entitled to recognition.
The first membership verification for recognition of a majority representative union of non-executives was scheduled to be held on the 25th September, 2002. The respondent No. 1 has pointed out that nine trade unions got themselves registered with the Bhartiya Sanchar Nigam Limited (respondent No. 1) by the stipulated date and participated in the membership process.
The National Federation of Telecom Employees, BSNL petitioner No. 1 herein secured above 15% votes and emerged as the majority union. Accordingly, vide a notification bearing No. BSNL/5/SR/2002 dated 4th October, 2002, this union was granted recognition as the representative union at the all India/circle/SSA levels for the period of two years with effect from 4th October, 2002 to 3rd October, 2004.
It has also been pointed out that the respondent No. 2 namely the BSNL Employees Union was registered on 15th June, 2001 and was granted registration No. 4896. The respondent No. 2 secured more than 50% votes in nine circles and was granted the right to deal with the matters of purely local interest in such circles in conformity with the Code of Discipline and the agreed minutes of the meeting dated 28th September, 2001 and circulated on 9th October, 2001.
The participating unions were mandatorily required to give an undertaking that they would abide by the agreed Code of Discipline. The petitioner No. 1 and the respondent No. 2 who had participated in the membership verification process were permitted to do so as they had given an undertaking that they would abide by the Code of Discipline.
It is noteworthy that there is no statutory requirement under the Trade Union Act nor under the Code of Discipline, agreed to be abided by the parties, which envisages grant of any facility to any union. However, in order to further the cause of harmonious relations between the management and the union representatives, certain facilities were extended to the recognised representative union at the all India/circle/SSA levels after the first verification. Orders in this behalf were issued on 5th December, 2002 to the following effect:
All the Chief General Managers
Bharat Sanchar Nigam Limited.
Subject: Grant of Facilities to the NFTE BSNL, the representative and recognized union in BSNL
It has been decided that the following facilities may be granted to the NFTE BSNL at the All India/Circle/SSA levels for the period of recognition of two years from the date of notification i.e. From 04.10.2002 to 03.10.2004:
i. Notice Board
ii. Telephone facilities as per existing procedure.
Iii. Immunity from transfer as per existing ruling
iv. Grant of formal meetings by the management
v. Facility of Special Casual Leave as per the existing procedure
vi. Office accommodation
(A.K. Pathak)
DDG (SR), BSNL HQs
So far as facilities at the circle level are concerned, keeping in view the large size of the respondent No. 1, BSNL Employees Union (respondent No. 2), which was other than the majority representative union, but was having more than 50% support in nine circles was also given certain facilities vide the communication dated 5th December, 2002. The communication of the respondent No. 1 in this behalf was to the following effect:
No. BSNL/39-1/SR/2002/2 Dated the 5th Dec., 2002
All the Chief General Managers
Bharat Sanchar Nigam Limited.
Subject: Grant of Facilities to the BSNL Employees Union, the union who has been granted right of representation in 9 Circles.
It has been decided that the following facilities may be granted to the BSNL Employees Union in the nine Circles (Assam, Kerala; Kolkata Telecom District; North East-I; North East-II, Technical & Development Circle; Telecom Factory, Kolkata; Telecom Stores, Kolkata and West Bengal) and the SSAs falling in these Circles for a period of two years from the date of notification i.e. From 04.10.2002 to 03.10.2004:
i. Notice Board
ii. Telephone facilities as per existing procedure
iii. Grant of formal meetings by the management
iv. Facility of Special Casual Leave as per the existing procedure.
These facilities are provided as an interim arrangement and are subject to further orders as may be passed by the A.P. High Court in the pending Writ Petition and without prejudice to the rights and contention of BSNL.
(A.K. Pathak)
DDG(SR), BSNL HQs
After the first membership verification process recognition was given to these Unions. Such period of recognition of the unions was expiring on the 3rd October, 2004 and therefore it was becoming necessary to conduct a verification process afresh to ascertain the major representative unions at the all-India and circle levels. Accordingly, a meeting was convened on 23rd September, 2004 by the respondent No. 1 which was presided over by the Chief Labour Commissioner (Central). This meeting was attended by all the 11 participating unions including the petitioner and the respondent No. 2. The decision taken in this meeting was recorded and communicated vide a letter dated 24th September, 2004. It was, inter alia, decided that the elections would be conducted through a secret ballot under the supervision of the Chief Labour Commissioner (Central) and the participating unions were directed to submit a certificate of acceptance in this behalf. It was also decided that all the participating unions would submit their election symbol to the ADG in writing under the signatures of their General Secretary or Secretary General and a decision with regard to finalisation of electoral roles was also taken.
Schedule of election through secret ballot was set down and notified vide a notification dated 4th October, 2004. There were 10 participating eligible unions for the second membership verification process, list whereof was circulated vide a letter dated 1st October, 2000. The petitioner and the respondent No. 2 were featuring at serial No. 1 and 2 of such list. The final ballot paper giving the election guide of the 11 participating unions was issued on 13th October, 2004 and 14th October, 2004.
Several steps taken to ensure fair elections and in order to ensure that no voter is mislead into believing that formation of the consortium would give a right for its recognition, the respondent No. 1 had issued instructions vide its communication dated 25th October, 2004 which reads as follows:
No. BSNL/5/SR/2004/Vol.II Dated, the 25th Nov., 2004.
To
All General Secretaries of participating unions
Sub: Conduct of 2nd membership verification on 1.12.2004 for election of a majority representative union of non-executive employees in BSNL - clarification regarding.
It has been brought to the notice of the BSNL Management by the Chief Returning Officer that some unions have formed a consortium/alliance after announcement of the verification process and have issued appeal for voting in favour of a particular union without officially withdrawing from election process. This is despite the fact that all such unions, except for one which is not participating in verification process, are participating in the 2nd membership verification for electing a majority representation union in their individual capacity for which they have also been allotted election symbol and have been extended certain facilities related to 2nd verification process. It is also being projected by the consortium that in the event the union supported by this consortium/alliance is declared as majority union, the signatory unions of the consortium/alliance will also get the right to deal with the management by way of extension of recognition & facilities meant for majority representative union.
As per the code of discipline and the clarification given by the Chief Labour Commissioner (C) from time to time and as has also been the criteria followed in the 1st verification process, it is once again reiterated that the participating union which will get majority votes, subject to minimum of 15% of the total votes, at all India level will only be declared as majority representative union of non-executive employees in BSNL & will be extended the agreed facilities thereafter. In addition, as already agreed, any union, which is able to get 50% or more membership (votes) at the Circle level, will also have the right to deal with matters of purely local interest of its own members at the Circle/SSA level in these Circles. This would be in addition to the Circle level organisation of the recognised union. It is further clarified that the formation of any alliance/consortium will not confer any right to its member unions for grant of recognized representative status and facilities which are meant only for majority union in whatsoever manner.
Sd/-
(S.K. Gupta)
DDG(SR), BSNL C.O.
The respondent No. 1 has pointed out that so as to ensure that the elections are conducted in a free and fair manner ballot boxes were arranged from the Election Commissioner of India. Paper seals for sealing the ballot boxes and the indelible ink were arranged from the sources from which the Election Commission of India procures these items for conducting elections in the country that is from the Government Press, Nasik and M/s Mysore Paints & Varnish Ltd. Polling booths numbering 2283 were set up for the convenience of the approximately 2,83,919 voters spread over the entire country. There were separate polling and counting teams appointed and the services of 147 poll observers from the Ministry of Labour were utilised. Balance staff from the respondent No. 1 were appointed at all the SSA and circle levels. The election was conducted in an absolutely free and fair manner. Approximately 92.63% voters cast their ballot in the election held on 1st December, 2004. Counting centres were spread all over the country and an observer either from the Ministry of Labour or the Bhartiya Sanchar Nigam Limited and representatives of the participating unions over saw the same at each centre. Counting was held on 3rd December, 2004.
The result was forwarded by the Assistant Returning Officer on 3rd December, 2004 itself to the respective CGMs of the circle in a scheduled format. The results for each circle were compiled in the presence of nominated returning officers, the observer from the Ministry of Labour or from the respondent No. 1 and the representatives of the participating unions in a prescribed format which had been circulated earlier. The respective returning officers forwarded these results on 3rd December, 2004 itself in the presence of the aforestated persons. It was based on such results, received from all the field unit/circles, that the Chief Returning Officer declared the result on 4th December, 2004.
The communication dated 4th December, 2004 has been placed before this Court as annexure R-17 to the counter affidavit. Perusal thereof shows that the National Federation of Telecom Employees BSNL petitioner herein secured 35.30% of the total number of votes. The BSNL Employees Union (respondent No. 2 herein) secured 49.25% of the total votes on its own steam. In terms of votes, the petitioner union had secured only 1,00,226 votes while the BSNL Employees Union, respondent No. 2 had secured 1,39,827 votes. The remaining votes were distributed amongst the other nine unions who had participated in the membership verification process for which the elections had been held.
No objection whatsoever was made or filed by the petitioner union to the respondent No. 1 or the Returning Officer or the Office of the Chief Labour Commissioner. The petitioner was satisfied with the election process and the declaration of the results.
As per the Code of Discipline binding upon the parties, thus, after the second membership verification process, the respondent No. 2 having secured majority votes in the election conducted through secret ballot was declared as the majority representative union for a period of two years, vide a notification dated 6th December, 2004.
It is noteworthy that the petitioner secured 50% or more votes in three circles i.e. the ALTC, Chhatisgarh and Maharashtra circle and accordingly, apart from the recognised majority representative union, was given the right to deal with matters of purely local interest of its members at the circles/SSA levels in these three circles.
The notification dated 6th December, 2004 issued by the respondent No. 1 notifying the recognition of the respondent No. 2 at the all-India level and the branches of the petitioner No. 1 at three circles in this behalf is to the following effect:
No. BSNL/5/SR/2004/Vol.II(i) Dated the 6th Dec., 2004
NOTIFICATION
Sub: Recognition of a majority representative union of non-executive employees in BSNL for a period of two years as per the results of 2nd membership verification conducted through Secret ballot on 1.12.2004.
As per the results declared by the Chief Returning Officer vide his letter No. BSNL/5/SR/2004/Vol.II dated 4th December, 2004 of the 2nd membership verification conducted through Secret ballot and in accordance with the agreed Code of Discipline for electing a majority representative union of non-executive employees in BSNL, the competent Authority in BSNL is pleased to declare the "BSNL Employees Union" as the majority representative union of non-executive employees at All-India/Circle/SSA level in BSNL for a period of two years from the date of this Notification i.e. From 06.12.2004 to 05.12.2006.
In addition, "NFTE BSNL" on account of securing 50% or more votes in the following circles, will also have the right to deal with matters of purely local interest of its members at the Circle/SSA level in these Circles. This would be in addition to the Circle level organisation of the recognised majority representative union.
(I) ALTTC, (II) Chhattisgarh; and (III) Maharashtra.
All workers, who re not members of the "NFTE BSNL" might either operate through the representative union or seek redress directly in the above-mentioned three Circles.
(Satish Wadhwa)
ADG(SR-II), BSNL C.O.
In terms of the policy of the respondent No. 1 noticed hereinabove certain facilities were extended to a trade union which secured the majority status in order to facilitate and render it convenient for it to discharge its duties in such capacity. Accordingly, the respondent No. 1 issued letters dated 6th December, 2004 directing that facilities which were earlier granted to the outgoing representative union, stood granted to the respondent No. 2 at the all India/circle/SSA for the period of its recognition of two years with effect from 6th December, 2004 to 5th December, 2006. Such facilities had been extended to the petitioner vide the communication dated 2002 noticed hereinabove. This communication specifically directed as follows:
The office accommodation along with infrastructure and facilities provided to the outgoing representative union and the Councils shall stand transferred to the "BSNL Employees Union" & the incumbent Councils.
Similarly, the petitioner was granted facilities in the ALTTC, Chhatisgarh and Maharashtra circles vide a separate communication dated 6th December, 2004 which included:
i. Notice Board;
ii. Telephone facilities as per existing procedure
iii. Grant of formal meetings by the Management
iv. Facility of Special Casual Leave as per the existing procedure.
The petitioner fully accepted the validity of the election and the result thereof and issued a letter dated 8th December, 2004 to the respondent No. 1 to the following effect:
No. TF-2/3(d). Dated: Dec. 8, 2004.
To,
The Dy. Director General (SR),
B.S.N.L.,
New Delhi.
Subject: Issues settled/pending in the National Council
Sir,
Our Federation failed to acquire the status of a recognised union.
If BSNLEU which is now the recognised representatives union desires revision of any of the decisions taken at our behest or stop the processing of issues still pending in the National Council, it may be done without hesitation.
I had made this request verbally in the meeting on the 4th instant. This letter is in confirmation of that request.
Yours faithfully,
Sd/-
(O.P. Gupta)
Secretary General
This letter was issued by Sh. O.P. Gupta, the Secretary General of the petitioner No. 1 and recognized the fact that the respondent No. 2 was the majority union and was entitled to recognition of its such status by the respondent No. 1.
However by way of the present writ petition, the petitioner has impugned the communication dated 6th December, 2004 whereby the respondent No. 1 notified the recognition of the respondent No. 2 as a majority union; the communication dated 12th January, 2005 whereby it was notified that the accommodation bearing No. D2 Atul Grove Road, New Delhi was allotted to the petitioner and the communication dated 28th January, 2005 whereby the petitioner was directed to vacate and handover the office premises No. D-2, Atul Grove Road immediately and handover the same to the respondent No. 1.
The entire thrust of the submission on behalf of the petitioner is to be found in para 11 of the writ petition which reads as follows:
That as such the respondent No. 1 malafidely ignored the said code of discipline and allowed the said 6 other minor unions to form a united forum in the name of BSNLEU, respondent No. 2 to contest against the petitioner and such a forum of 6 unions together could get support of 139,827 employees which cannot be allowed since such a body is neither registered nor it is entitled to contest and seek recognition being a forum of 6 unions as per respondent No. 1 vide its circular dated 25th Nov. 2004 copy of which is annexed as ANNEXURE P-5.
It is an admitted position that the petitioner''s allotment to the premises was cancelled vide a letter dated 29th April, 2005.
It had further been contended that the Chennai unit of the petitioner has challenged the action of recognition of the respondent No. 2 by filing a writ petition No. 1092/2005 before the High Court of Judicature at Madras. It was pointed out that an interim order dated 19th January, 2005 was made granting status quo as on 1st October. It appears that this order was effected however in a writ appeal No. 923-924/2005 filed by the Chennai Unit of the petitioner, the status quo order was restored. No photocopy of the writ petition or the application has been placed before this Court and there is no material to ascertain the nature of the litigation.
It is settled law that an order will operate in terms of the averments contained and the prayer made in the application on which the same was granted. I find that the order dated 19th October, 2005 reads as follows:
Petition praying that in the circumstance stated therein and in the affidavit filed there with the High Court will be pleased to grant an order of interim injunction restraining the first respondent and his subordinates from accepting nominations submitted by the 2nd respondent for the circle councils in all telecom circles and local councils at telecom Districts throughout the country pending WP.
It is manifest that the prayer by the petitioner in Writ Petition (Miscellaneous Petition) No. 1121/2005 which was filed in Writ Petition No./2005 was restricted to a injunction restraining the respondents from accepting nominations submitted by the 2nd respondent for the circle councils in the telecom circles and local councils. The writ petition was dismissed vide a judgment dated 19th April, 2005. This order did not relate to any prohibition to the respondent No. 1 recognising the respondent No. 2 as a majority union nor raised any challenge to grant of the facilities as per the aforestated policy of the respondent No. 1.
The present writ petition was filed on 11th February, 2005 and notice to show cause was issued to the respondents for 15th February, 2005.
The respondent No. 1 has placed reliance on the order passed by the Apex Court in Review Petition (Civil) Nos. 1111/1112/2002 in Civil Appeals Nos. 3337 and 3338/2002 entitled Chairman, State Bank of India and Anr. applicant v. All Orissa State Bank Officers Association and Anr. (respondent) in the judgment dated 31st July, 2003. It has been pointed out that the Apex Court, while reviewing its earlier judgment dated 6th May, 2002, has observed that no legal right exists in a minority union to represent its individual grievances of the management in respect of its circles. It has been contended that the Apex Court has held that even a majority union does not have such an inherent right. Based on this submission, it has been contended that the petitioner union has no right whatsoever to ask for any facility to be granted to it by the petitioner.
The present writ petition has been filed on a bald assertion unsupported by any material to the effect that the respondent No. 2 was a federation and consortium, was part of a united forum and hence was not entitled to contest elections against the petitioner.
I may also notice that the petitioner has tried to take a different stand in its rejoinder affidavit. It has been contended that a circular had been issued which was in the nature of an appeal requesting the BSNL employees to vote for an "ALL UNIONS ALLIANCE" in the elections which were scheduled to be held on 1st December, 2004. It was contended on behalf of the petitioner that this "All Unions Alliance" consisted of BSNL Employees Union (respondent No. 2 herein), National Union of BSNL Workers (FNTO), Telecom Employees Progressive Union, All India Backward Classes Telecom Employees-Sangathan, All India SC/ST Telecom Employees Welfare Association. A photo copy of a printed leaflet has been placed on record.
As already noticed above, the respondent No. 1 was vigilant and had issued a circular dated 25th November, 2004 voting its employees with regard to alliance. The respondent No. 2 on its own steam had secured 49.2% votes.
Perusal of the election results show that the other unions named in this alleged appeal/leaflet secured the following votes
--------------------------------------------------------------- Name of the Union Percentage of Vote --------------------------------------------------------------- BSNL Employees Union 49.25% --------------------------------------------------------------- National Union of BSNL Workers 0.19% --------------------------------------------------------------- Telecom Employees Progressive Union 0.04% --------------------------------------------------------------- All India Backward Class Telecom 0.12% ---------------------------------------------------------------
The respondent No. 2 has vehemently challenged the allegations of the petitioner. The results of the election noticed hereinabove do not support the petitioner. I have therefore no hesitation in rejecting the argument of the petitioner that the respondent No. 2 contested the election as an alliance or consortium. The document which is being relied upon by the petitioner is an unsigned document and is not supported by the fact situation laid out in the writ petition or the counter affidavit. In any case the election results non-suit the petitioner.
In view of the foregoing discussion, the challenge in the present writ petition is wholly devoid of any merit. There is no violation of the circular dated 25th October, 2004 which was in the nature of a caution to the parties participating in the election and the employees of respondent No. 1. No particular Union or party is named therein also.
In the face of the admission and acceptance by the petitioner that it had failed to acquire the status of a majority recognised union, the petitioner can admittedly not be given any relief.
It has been contended on behalf of the respondent No. 1 that the petitioner has no right to raise the issues raised in the present writ petition and in case it is aggrieved by any action of the respondents to recognise it as representative of the workman, its remedy lies under the Industrial Disputes Act, 1947. I find force in this submission which is fortified by the pronouncement reported at 60 FJR 247 entitled Kerala Minerals Employees Congress Vs. Assistant Labour Commissioner and Others, entitled Kerala Minerals Employees Congress v. Assistant Labour Commissioner and Ors.
I find that the submission made by the petitioner has no basis. The respondent No. 2 did not contest the election as a united forum with any other minority unions. It contested the election in its own name and secured 49.25% votes of its own. The respondent No. 1 was found to have the support of 1,39,827 employees. It contested the election in its own election symbol and there is no challenge to these facts by the petitioner.
Against this, the petitioner has secured 1,00,226 votes only which formed 35.30% votes alone.
The respondent No. 1 has placed before this Court at page 171 of the paper book the election results which were communicated by the Chief Election Officer duly signed by the observers of the authorities and by representatives of all the unions including the petitioner herein. The petitioner had accepted the validity of the election in its letter dated 8th December, 2004. There is no challenge to the membership verification process in the present writ petition.
The facilities given by the respondent No. 1 are intended for the benefit of the employees of the respondent No. 1. The office facilities are permitted to be utilised by respondent No. 1 for the purposes of furthering the cause of the employees of the respondent No. 1 and not for the furtherance of the working of any particular trade union. The petitioner was permitted to occupy the premises in terms of the communication dated 5th December, 2002 which explicitly specified that the petitioner was recognized only for the period of two years with effect from 4th October, 2002 to 3rd October, 2004.
In Ramanuj Prasad Vs. Coal India Ltd. and Others, , it was held that as the petitioner did not have any legal right to continue to hold the post, no writ of mandamus directing the respondents to either regularise the petitioner''s service in this grade or to promote him to such grade could be issued.
As there was no statutory right to claim interest on a delay in refund earlier to a statutory amendment, in Union of India and Others Vs. M/s. Orient Enterprises and Another, the Apex Court held that in the absence of such statutory right, writ petition claiming such benefit was not maintainable.
In Rajinder Kakkar and Others Vs. Delhi Development Authority, , persons who were encroachers on public land and had raised unauthorised buildings were seeking protection in a writ petition under Article 226 of the Constitution of India. The Court held that persons who are encroachers, never had any right to legal possession of the public land and therefore had no legal right which could be protected by issuance of a writ in their favour.
It is settled law that a writ in the nature of a mandamus may issue to compel the authority to do something. However it must be shown that a legal duty was statutorily cast on the authority and the person claiming had a legal right under the statute to enforce its performance Re The State of Haryana Vs. Subash Chander Marwaha and Others,
It is therefore settled law that a party seeking entitlement to grant of a relief must show an existing legal right which deserves to be protected. In the instant case, the petitioner has no legal or vested right to continue to occupy the premises which were given to it pursuant to the order dated 5th December, 2002. As such no relief can be given to the petitioner in the instant writ petition.
In this behalf, I may also appropriately refer to the pronouncement of the Apex Court in (1997) 1 SCC 486 entitled Mani Subrat and Ors. v. State of Haryana and Ors. wherein the court held thus:
xx It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. See The State of Haryana Vs. Subash Chander Marwaha and Others, entitled Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, entitled Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed and Ferris: Estraordinary Legal Remedies, paragraph 198.
Before parting with the case I cannot help but notice that the entire gamut of industrial legislation has been enacted as social welfare laws to protect the rights of workers and ensure justice to them while furthering industrial harmony. Trade unions have been granted statutory recognition to provide for collective bargaining so that the voiceless worker without any financial power is not smothered under the economic might of the industrial establishment employing him.
Benefits and facilities provided by the employer to facilitate the working of the trade union espousing the cause of the workers must be appreciated and the stipulations conferring such rights must be respected.
In the spirit of the welfare of the labour a union having lost its majority should not require notices from the establishment for handing over such facilities to the new majority union. Having opted for elections, all participants should unflinchingly abide by the result. Exception being, challenge thereto on strong legal grounds.
Futile and speculative litigation on wholly untenable and baseless grounds with the intent of perpetuating enjoyment of facilities by an outgoing union is, in my view, abhorrent to the very genesis for which a trade union is created and recognised. It is opposed to labour welfare and must be discouraged in no uncertain terms.
The present writ petition, has been filed by the petitioner to perpetuate its occupation of accommodation and use of the other facilities which intended for the benefit of the employees of respondent No. 1 for whose cause the accommodation is made available to the majority trade union. This, in my view, is an act opposed to the interest of the workmen and ought not to be countenanced.
After this judgment had been dictated and prior to pronouncement, the respondents mentioned the matter seeking leave to place before this Court the judgments passed in its favour.
Accordingly the matter was posted for directions on 6/09/05 and opportunity was given to both sides to make submissions. I find that the Division Bench of the High Court of Judicature at Chennai in Writ Appeal No. 923 and 924/2005 entitled National Federation of Telecom Employees v. The Chairman and Managing Director, BSNL and Anr. has passed a detailed judgment. The petitioner in the instant case was placing reliance on the interim orders passed in writ appeal. The present respondent No. 2 i.e. BSNL Employees Union was arrayed as respondent No. 3 in writ appeal No. 924/2005. Vide the judgment dated 3rd August, 2005 dismissing the appeal, the Division Bench observed as under:
In paragraph 6 of the counter affidavit it is stated that the letter dated 25.11.2004 issued by BSNL has been cited out of context by the petitioner. The letter nowhere prohibits any alliance. In fact the NFTE enjoyed representative status and operated with an alliance between 2002 and 2004. Hence it cannot blow not and cold together.
We have also perused the counter affidavits filed in W.P. No. 1092 of 2005.
On the facts of the case, we find no merit in these writ appeals.
The third respondent Union had secured 1,39,827 votes as against 1,00,226 votes secured by the petitioner Union. Hence the third respondent Union was rightly declared as the majority representative. We agree with the respondents that the conduct of election was fair, and for the purpose of deciding the majority, the combined strength of the consortium was not taken into account, but only symbol wise polled votes. In fact in the year 2002 when the petitioner Union (NFTE) was successful it had formed an alliance with other Unions. Hence, we cannot see how it can approbate and reprobate at the same time. In fact before the Andhra Pradesh High Court the writ petitioner Union took a reverse stand to what it is taking now. Thus, it is blowing hot and cold together.
Respondents 1 and 2 have recognised only BSNL Employees Union as the majority representative Union for two years and has not recognised the alliance/consortium members as a recognised Union. As clarified by the letter dated 25.11.2004, no rights were conferred to the member Union of the alliance, and the Union facilities were also not extended to the other trade unions.
It appears that after losing in the election, the appellant/Union through its circle units have filed petitions seeking different relief in various High Courts e.g. Chattisgarh High Court, Jammu and Kashmir High Court, Delhi High Court, Madhya Pradesh High Court, Calcutta High Court and two petitions in Madras High Court. In our opinion, this is clearly a case of forum-shopping which was indulged by the appellant/Union.
In All India State Bank Officers Federation and Others Vs. Union of India (UOI) and Others, the practice of simultaneous filing of writ petitions on the same issue though purportedly on behalf of different associations was emphatically disapproved by the Supreme Court. It may be submitted that the code of discipline relied on by the appellant is not a statutory code. The Trade Unions Act, 1926 does not provide for recognition of Trade Unions. Thus the order dated 06.12.2004 by which the second respondent was granted recognition was not a statutory order nor was the order dated 07.01.2005 reconstitution the National Council.
In a similar case dwelling with the recognition of the Trade Unions the Supreme Court in Chairman, State Bank of India and Another Vs. All Orissa State Bank Officers Association and Another, had held that it is not possible for the High Court to exercise its powers under Article 226 of the Constitution of India to direct the employer in the matter of representation of Unions.
Apart from the above, we are also of the opinion that the writ petitions were liable to be dismissed on the ground that the petitioner Union suppressed material facts by filing similar writ petitions in various other High Courts as stated above. It is well settled that writ is a discretionary remedy, and should not be issued in favour of persons who had suppressed material facts, vide All India State Bank Officers Federation v. Union of India (supra).
In view of the above, the writ appeals are dismissed with costs. Consequently, the interim order granted by this Court is vacated and the vacate say petitions are closed.
The respondents have also placed before this Court a decision dated 3rd May, 2005 by the High Court of Jammu & Kashmir passed in Original Writ Petition No. 19/2005 entitled National Federation of Telecom Employees (BSNL) v. The Bharat Sanchar Nigam Limited and Ors., it appears that the petitioner sought an appropriate writ commanding the respondents to issue a formal notification in favour of the petitioner after granting the same status of representative body at the Jammu & Kashmir circle/SSA Levels and provision of all facilties as were envisaged by the Code of Discipline and the clarifications made by the Chief Labour Commissioner (Central) from time to time. After consideration of the various provisions governing conduct of elections for clarification of membership, the Court held as follows:
The petitioner-federation has secured 1299 votes of the total votes polled which apparently is more than 50%. The petitioner case is that since it has obtained more than 50% votes polled the federation is entitled to represent the employees at the State level while as the stand of the employees is that it is not 50% of the votes polled but 50% of the total membership. The communication reproduced above on the basis of which both the parties lay their claim, in unambiguous words provides 50% or more of membership (votes) at the circle level. It does not provide 50% or more of votes polled. Thus, the Federation can claim to be the representative of the employees only if it is able to get 50% or more membership (votes) at the circle. In the present case the petitioner-federation has not secured 50% or more or membership votes but more than 50% of votes polled. Thus, having not fulfilled the requirement of getting 50% or more of membership (votes), the petitioners cannot claim to be the representative of the employees at the State level. The petitioners have in support of their cause cited the example of ALTTC Chattisgarh and Maharashtra but a perusal of the result-sheet shows that all the three association have secured more than 50% of total membership, as such, they have been given right to represent the employees at the State level.
Under these circumstances, I find there is no case in favour of the petitioners. The petition is, therefore, dismissed.
These judgments support the view I have taken.
In view of the foregoing, I find no manner of doubt that no relief can be granted to the petitioner in the present writ petition.
Accordingly this petition is dismissed with costs which are quantified at Rs. 10,000/- to be paid in equal proportion to respondent Nos. 1 & 2.