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Judgment
Venkataswami, J.—In all the writ petitions though the prayers differ in form, the ultimate relief sought in substance and essence is the same.
Hence, by consent, all the writ petitions are taken up together and the counsel on all sides advanced common arguments. In the circumstances, we
dispose of all these writ petitions by this common order.
The Writ Appeal No. 683 of 1988 is preferred against an interim order in W.M.P. No. 341 of 1988 in W.P. No. 237 of 1988. In view of the
final disposal of all the writ petitions including W.P. No. 237 of 1988, no separate order is necessary in W.A. No. 683 of 1988.
The common question raised in all these writ petitions is whether check-off facility can be extended by the respective Bank management to
unrecognised unions. The petitioners in all these writ petitions contended that the check-off facility which had been hitherto extended only to
recognised unions should not be extended to unrecognised unions, even though they are registered unions.
Let us now set out the case of the petitioners. Before that, it may be noted what is meant by check-off facility. At the specific written request of
an employee, the Bank management collects/deducts the monthly subscription from his salary payable to the union named by him. This facility is
called as check-off facility. Such facility was given to the employees of recognised union in the Banks who are the respondents before us. Pursuant
to a communication from the Government of India dated 11th January 1988, the respondents/Banks have decided to extend the check-off facility
to all the registered unions, whether they are recognised or not. Aggrieved by the said decision of the Banks, the recognised unions who have been
exclusively enjoying the check-off facility have filed these writ petitions, either for quashing the decision of the Bank management to extend the
check-off facility or to restrain the Bank management from extending such facility to the unions other than recognised one.
Mr. Dolia of M/s. Aiyer & Dolia, advanced leading arguments in support of the contentions that the check-off facility should not be extended to
unrecognised unions. The principal contentions are the following : The code of discipline in industry evolved during the 15th National Conference in
Nainital covers Banking industry as well. In the 16th Session of the said conference held some time in May, 1958, certain guidelines for recognising
an union were evolved. According to the said guidelines, the union operating in a Circle representing the majority of the employees or atleast 25
per cent. of them alone should be given recognition. Such recognised union enjoys certain facilities such as to negotiate with the management on
behalf of the employees etc. The National Labour Commission in paragraph 20-70 of Chapter XX of its report suggested that the check-off
facility if to be provided should be restricted to the recognised unions only. Overlooking this recommendation of the National Labour Commission,
if the check-off facility is to be extended to all the registered unions, irrespective of recognition, that will amount to the management committing
unfair labour practice within Clause 2(b) of Schedule V to the Industrial Disputes Act. As a matter of fact, the Industrial Bill that has been
introduced in the Parliament in fact restricts the rules of the trade union to provide 10% minimum membership for a period of six months. From this
it is clear that the intention of the legislature was to discourage the mushroom growth of number of trade unions and thereby to achieve an industrial
peace among the trade unions. The communication dated 11th January 1988 circulated to the Banks by the Government of India has no legal basis
to direct the Bank management to obey the same. If at all the Government of India can issue directions to the Banks, it could be only u/s 18 of the
Bank of India Act, 1955 and the said power cannot be invoked without consulting the Government of the Reserve Bank of India and the Chairman
of the State Bank of India. In as much as the requirements of Section 18 of the State Bank of India Act, 1955 having not been complied with, it
cannot be said that the communication dated 11th January 1988 was the one issued u/s 18 of the State Bank of India Act, 1955. Therefore, the
respondents Banks are under no obligation to follow the communication dated 11th January 1988 issued by the Government of India. Apart from
the above submission, the learned counsel further submitted that there is evidence to show that the communication dated 11th January 1988 by the
Government of India was issued with some ulterior motive and at the instigation of certain M.Ps. like Mr. K. Ramamoorthy and Mrs.
Vijayanthimala Bali and as such as the said communications is mala fide. According to the learned counsel, for these reasons, the relief prayed for
viz., that check-off facility should not be granted to unrecognised unions is to be granted.
Miss. Vaigai learned counsel appearing for some of the petitioners while adopting the arguments of Mr. Dolia further submitted that the check-
off facility is guided by the principles based on Public Policy governing Industrial Relations. After referring to the recommendation of the National
Labour Commission, she further submitted that the recommendation restricting the facility in favour of the recognised union was given in
accordance with the code of discipline which was formulated at the 15th Tripartite Labour Conference at the national level. Though the code of
discipline is not statutory in character, they are binding on the public sector undertakings. Therefore, the action extending the check-off facility to all
the registered unions is contrary to the Public Policy evolved in the code of discipline and that therefore arbitrary and liable to be set aside.
According to Miss Vaigai, the purpose of granting facility exclusively to recognised union is based on the principles underlying ""participative
management"" embodied in Article 43A of the Constitution of India. In other words, the reason behind restricting the extension of check-off facility
to recognised union is that the collective bargaining capacity that the union has gained through the majority should be consolidated. Otherwise their
strength will be undermined. Explaining this principle, the learned counsel submitted that the collection of the subscription of the members as
judicially recognised, is a vital source of strength that union''s existence depends upon for its finances. Looked at from this angle, the unfair labour
practice contemplated under Item 2(b) of Schedule V to the Industrial Disputes Act will be explicit in the matter of extension of check-off facility to
all registered unions. Learned counsel also submitted that the extension of check-off facility to all to all the registered unions will amount to unfair
labour practice as contemplated under item 2(b) of the V Schedule of the Industrial Disputes Act also. Therefore, on these grounds the proposal to
extend the check-off facility to all the registered unions should be struck down.
In as much as the action challenged in these writ petitions being opposed to Public Policy underlying Industrial Relations it must be held that it is
arbitrary and violative of Article 14 of the Constitution. The reason given in the Government of India''s communication dated 11th January 1988
viz., that in order to achieve uniformity among the Banks the check-off facility should be extended to all the registered unions is misconceived. By
the impugned action the Bank management is taking away the right viz., enjoyment of exclusive check-off facility, enjoyed by recognised unions in
an arbitrary and unreasonable manner and therefore liable to be set aside. Assuming that the impugned action of the Bank management is a Policy
decision, even then, the Banks being public sector undertakings the Policy Decision in justiciable and liable to be challenged in Courts of law.
Miss. Vaigai in support of her above contentions placed reliance on the following judgments reported in :
Balmer Lawrie Workers'' Union, Bombay v. Balmer Lawrie and Company 1985 1 LLJ 314 :
D. V. Rama Das, v. State Bank of India, Bombay (Judgment in W.A. No. 1603 of 1984 of Andhra Pradesh High Court, dated 17th December
1984) :
Tamil Nadu Electricity Board Accounts and Executive Staff Union Vs. Tamil Nadu Electricity Board, :
Tamil Nadu Electricity Board Vs. Tamil Nadu Electricity Board Accounts and Executive Staff Union, ;
Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, .
Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, .
In addition to the above citations Mr. Dolia, learned counsel appearing for the petitioners in some of the cases, also placed reliance on the
following judgments in support of his arguments :- Workers of B. & C. Co. v. Commissioner of Labour 1964 I LLJ 253 Mansukh Gopinath
Jadhav Vs. W.M. Bapat and others, ; Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, and Rohtas
Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, .
Let us now set out the contentions of the learned counsel appearing for the contesting respondent Unions, bank management and Union of
India in meeting the above contentions.
Mr. D. Murugesan, learned counsel appearing for the appellant in Writ Appeal No. 683 of 1988 and also the connected writ petitions
submitted that the writ petitions are liable to be dismissed in limine, on the ground that the relief of mandamus cannot be given in as much as the
check-off facility had already been extended to the registered unions. It is also submitted that the writ petition has been filed by a Union and as
such, it cannot be said that the Union is aggrieved by the extension of check-off facility to other. Unions apart from recognised unions for the
simple reason that the facility enjoyed by the petitioner-Union has not been taken away. In other words, the petitioner-Union is still enjoying the
check-off facility and the Management has only extended such check-off facility to other registered unions. Therefore, the petitioner cannot be
considered as an aggrieved person
On merits, the learned counsel submitted that the contention that the check-off facility can be extended only to the recognised union in the light
of Code of Discipline is misconceived. According to the learned counsel, nowhere in the Code of Discipline, either directly or indirectly, there is
anything to show that the check-off facility can be extended only to recognised unions. Not only that, there is no clause containing any specific
prohibition to extend such facility to other unions like the contesting respondent Unions. If that be the position under the Code of Discipline, the
claim of the petitioners that only recognised unions alone be given the exclusive privilege of the check-off facility cannot be sustained. It is common
ground, the learned counsel argued, that the Code of Discipline is non-statutory in character. In the premises, the relief prayed for by the
petitioners cannot at all be granted. Secondly it was contended that the contention of the learned counsel for the petitioners based on the
recommendation of the 15th Labour Commission is misleading. According to the learned counsel, the recommendation of the 15th Labour
Commission underwent a review in the National Labour Conference held at New Delhi on 17th and 18th of September 1982. As per the outcome
of this Labour Conference, the extension of the check-off facility to all registered unions has been favoured. Therefore, the arguments placing
reliance on the recommendation of the 15th Labour Commission are of no avail. Based on a Tripartite agreement reached after the National
Labour Conference held at New Delhi on 17th September 1982 and 18th September 1982, the registered unions clamoured for extension of
check-off facilities and made representations for that purpose to the management as well as to the Government of India. After considering the
representations, the Government of India thought that the extension of check-off facility to all registered unions would be not only in public interest
but also in the interest of industrial peace among the employees of various trade unions. On that basis only the Government of India advised the
bank managements to extend the check-off facility to all registered unions, whether recognised or not. Therefore, the contention of the petitioners
that the exclusive privilege enjoyed by the recognised union in the matter of check-off facility cannot be extended to other registered unions, will
not hold water. It was next contended by the learned counsel Mr. D. Murugesan that the contention based on paragraph 2(b) of Schedule V of
Industrial Disputes Act is also with out force. According to the learned counsel there is no case for application of that provision, namely, ''unfair
labour practice'' to the facts of the present case. If at all, the non-extention of the check-off facility to registered unions will amount to unfair labour
practice coming under paragraph 2(b) of Schedule V of the Industrial Disputes Act. Mr. Murugesan further contended that the argument of the
learned counsel for the petitioners that if the check-off facility is extended to all registered unions, then the strength and financial status of the
recognised unions will be affected is baseless. Factually, according to the learned counsel, several nationalised banks have long before the
impugned advice of the Government of India, have extended the facility to all registered unions and no complaint has been received from the
recognised unions that on account of extension of such facility to all registered unions, the strength and financial status of the recognised unions has
been affected.
Lastly, it was contended by Mr. D. Murugesan that a perusal of Section 7(2)(kkk) of the Payment of Wages Act will support the extension of
check-off facility to registered unions. On the basis of these arguments, the learned counsel prayed for the dismissal of the writ petition.
Mr. Chandru, learned counsel appearing for the 4th respondent in Writ Petition No. 237 of 1987 and 3rd respondent in Writ Petition No.
5454 of 1988, apart from narrating the sequence of various events which led to the formation of trade unions, rights and privileges of the same,
contended that the extension of check-off facility to recognised Unions can be supported independent of the advice of the Government of India
which is under challenge. According to Mr. Chandru, the 4th respondent IOB Employees'' Union (W.B.), Calcutta for whom he appears, is a
registered trade union and is operating in the State of West Bengal alone. Out of 1200 employees, 90% of them are members of the 4th
respondent-Union. The 4th respondent-Union has a de facto recognition by the 1st respondent and as such has been enjoying various facilities
since its establishment including check-off facility. In other words, this Union is not enjoying the check-off facility by reason of the impugned advice
of the Government of India. According to the learned counsel, the check-off facility can be supported by the provisions of Section 7(2)(kkk) of the
Payment of Wages Act. He also contended that this facility has to be viewed from the point of view of an employee as he is the person to take a
decision to avail or not to avail that facility by giving voluntarily a written authorization, to the Bank Management. It is open to the employee to
withdraw such authorization at any point of time about which the Union, be it recognised or not, can have no say. It was contended by the learned
counsel that there can be no trade union which can have vested interest in the matter of check-off facility particularly in the absence of any law on
this aspect. The concept of having a monolith of one union is slowly undergoing a change as could be seen from the latest amendment to the Trade
Union Act (vide 1988 Bill). The latest amendment envisages the role of several unions in one industry. As a matter of fact, Section 14(a) of the Bill
contemplates the extension of check-off facility to all trade unions, whether it is recognised or not. Therefore, the contention that the recognised
unions alone should be granted the facility of check-off is totally unsustainable.
It is also contended by Mr. Chandru that the writ petitions against Indian Overseas Bank Employees'' Union (W.B.), Calcutta are not
maintainable for two reasons. First is, that there are more than 10 registered trade unions functioning under the 1st respondent-Bank and all those
registered unions are not made party respondents. Secondly, no part of the cause of action arises within the territorial jurisdiction of this Court to
enable the petitioner to file the writ petition against the I.O.B. Employees'' Union (W.B.), Calcutta.
Mr. Selvaraj, learned counsel appearing for the respondents in W.P. 996, 5455 and 6626 of 1988 while adopting the arguments advanced by
Mr. D. Murugesan and Mr. Chandru, submitted that the petitioners in the above writ petitions are Officers of the Bank to whom the provisions of
Industrial Disputes Act will not apply. Therefore, the arguments based on the Code of Discipline and unfair labour practice will not be available to
the petitioners. Apart from that, no other arguments were separately advanced by the learned counsel for the petitioners to challenge the extension
of check-off facility to all recognised unions.
Mr. M. R. Narayanaswami, learned counsel appearing for the Bank-Management (respondents in W.P. Nos. 237 and 996 of 1988 and W.A.
683 of 1988) contended that the check-off facility is one which is factually available to employees. It is wrong to assume that the facility is available
to the Union as such. The conditions under which the check-off facility is extended would clearly show that unless and until those conditions are
complied with, the facility cannot be extended even to a recognised union. One such condition is the furnishing of a specific authorization letter by
each member of the recognised union authorising the Bank to deduct his subscription towards membership. Such authorisation could be revoked at
any time by the member and if such revocation is made, the Bank has no option but to delete his name from the list of members who are enjoying
the check-off facility. Viewed from this angle, according to the learned counsel, the petitions by the recognised Unions are not maintainable. In this
connection, the learned counsel brought to our notice a format to be signed by each member of the recognised union.
Mr. Nalini Chidambaram, learned counsel appearing for the Bank-Management in W.P. 3372 and 6626/86 submitted that the writ petitions
are not maintainable in as much as no rights conferred on them were affected and apart from that, the petitioners have not established how the
registered unions are not entitled to the facility of check-off. According to the learned counsel, the relief of mandamus is a misconceived one.
Mr. T. Srinivasamurthy, learned counsel appearing for the Union of India submitted that the advice given by the Ministry of Finance in its letter
dated 11th January 1988 is not one given u/s 18 of the State Bank of India Act, 1955. It is an advice in the interest of peace in the industrial
relation and also to maintain a uniform procedure in all public sector banks. Such an advice cannot be considered as an interference in the affairs of
the Management by the Banks.
The following decisions are cited on the side of the respondents in support of their contentions in opposing the writ petitions :- All India Bank
Employees'' Association Vs. National Industrial Tribunal and Others, ; A.C. Mukherjee and Others Vs. Union of India (UOI) and Others, ; M. A.
David v. K.S.E. Board reported in 1973 II LLJ 466 Balmer Lawrie Workers'' Union, Bombay and Another Vs. Balmer Lawrie and Co. Ltd. and
Others, ; Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, ; Life Insurance Corporation of
India Vs. Escorts Ltd. and Others, , J. R. Raghupathy v. State of Andhra Pradesh reported in 1988 (4) S.C. 364.
We have in depth considered the rival arguments and also perused the citations given by the learned counsel on both sides.
From the narration, consisting of various facts and rival arguments, given above, it is clear that the check-off facility extended by the
Management of the Public Sector banks in some cases exclusively to the recognised union and in other cases to all registered unions, is not under
the authority of any provision of law. Therefore, some public sector banks have extended this to all registered unions and other public sector banks
have restricted this facility to recognised unions only.
It is common ground that the Code of Discipline on which heavy reliance was placed by the learned counsel appearing for the writ petitions is
not statutory in character and there is nothing to suggest that the check-off facility must be given only to recognised unions. If this much is not in
dispute, the further question will be, whether the writ petitioners are justified in invoking the extraordinary jurisdiction of this Court under Article
226 of the Constitution seeking the aid of this Court to prevent the extension of check-off facility to all the registered unions. We find no difficulty in
holding that the petitioners have no right to seek the relief to either the writ of mandamus directing the bank managements not to extend the check-
off facility to all registered unions pursuant to the direction/advice given by the Government of India by their letter dated 11th January 1988 or to
quash the decision extending such facility to all registered unions. We shall give our reasons for coming to this conclusion.
As noticed earlier, the bone of contention in support of the relief prayed for in the writ petitions is that the recommendation of the 15th Labour
Commission to extend the check-off facility only to the recognised union being based on the ground that that will enable the recognised union to
fight the mighty management effectively, that object will be frustrated if the facility is extended to all registered unions and the union''s strength and
financial status will also be seriously affected. This argument cannot be accepted in view of the factual position that in a number of public sector
banks, the facility of check-off system has already been extended to all registered unions and there is no complaint from the recognised union that
as a result of giving of such facility to all registered unions, the strength and financial status of the recognised union has been weakened. Further, if
in law, there is no right to claim that the recognised union alone should be given the check-off facility, the writ petitioners are not well-founded in
moving this Court for such a relief. In this connection, the argument of Mr. D. Murugesan that after the review of the recommendation of the 15th
National Commission on Labour in the National Labour Conference held at New Delhi on 17th and 18th September, 1982 and after the Tripartite
Agreement, it is no longer open to the petitioners to rely on the recommendation of the 15th National Commission on Labour, assuming that it
gives some support to the petitioners connection, is well-founded.
At this stage, it is very relevant to note the argument of Mr. M. R. Narayanaswami, learned counsel appearing for the Bank Management that
the writ petitioners are under a misconception regarding the scope of check-off facility. As rightly contended by him, the check-off facility is one
given to the individual employee on his voluntary written request and it will be in force till the said individual employee withdraws the same. The
format used for granting the check-off facility reads as follows :-
The Branch Manager,
State Bank of India,
......
Dear Sir,
Authorization for deduction of Union subscription from the monthly salary and allowances.
-----------------------------------------------------------------------
I request you to deduct from my salary and allowances in respect of every month a sum of Rs. (Rupees only) and credit the same to the current
account of the --- Union/Association at ------- of the Bank.
This authorization shall continue to be effective till I revoke the same.
Yours faithfully,
Name-------
Signature--------
It is to be remembered that either for giving the voluntary written request or for withdrawing the same, the Union has no say. If that be the position,
by granting the relief prayed for in the writ petitions, the petitioners will be achieving indirectly what they cannot achieve directly. For that, the
Court will not be a party, especially in proceedings under Article 226 of the Constitution.
We are also inclined to accept the argument advanced by Mr. D. Murugesan and Mr. Chandru that Section 7(2)(kkk) of the Payment of
Wages Act supports the case of the respondents at the check-off facility should not be restricted to the members of the recognised unions alone.
Section 7(2)(kkk) of the said Act reads as follows :-
Deductions which may be made from wages. -
(1) xxx xxx
(2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be the following
kinds, namely :
(a) to (kk) xxx xxx
(kkk) deductions made, with the written authorisation of the employed person, for payment of the fees payable by him for the membership of any
trade union registered under the Trade Unions Act, 1926.
The format to be given by each individual employee (also extracted above) is in conformity with the above provisions in the Payment of Wages
Act. Therefore, if really the option is left to the individual employee, the question of extending the facility to the unions, recognized or not, pales into
insignificance. Viewed from this angle, in our view, the petitioners have no case at all to seek the relief of mandamus or certiorari, especially when
they could not rest their case on any statutory provision. We are not impressed with the arguments of the learned counsel for the petitioners that by
extending the facility to all Unions, the Bank Managements commit unfair labour practice within the meaning of clause 2(b) of Schedule V of the
Industrial Disputes Act. We are also not impressed by the argument that by extending the facility to registered unions, the exclusive right enjoyed
by the recognised unions has been taken away arbitrarily. This argument is based on a misconception about the right of check-off facility. As
noticed earlier, this facility can be given effect to if only the concerned individual employee seeks the same voluntarily. This basic factor has been
borne in mind by the petitioners in understanding the system of check-off facility.
As the above discussion is sufficient to dispose of the writ petitions, we do not consider it necessary to go in the case-laws cited by the learned
counsel on both sides, which admittedly are not directly on the issue we are at. Likewise, we do not also consider it necessary to discuss all the
other points raised before us.
On the basis of the above discussion, we hold that the decision to extend the check-off facility to all registered unions does not suffer from any
infirmity requiring to be corrected by proceedings under Article 226 of the Constitution.
So far as the writ petitions filed by Officers'' Associations are concerned, namely, Writ Petition Nos. 996, 5455 and 6626 of 1988, in addition
to the reasons already given, these writ petitions are liable to be dismissed on the additional ground that the contentions based on the provisions of
Industrial Disputes Act and the Code of Discipline will have no application as rightly contended by Mr. SelvaraJ.
Mr. Dolia, in the course of arguments, pressed for a perusal of the records by the Court including the note-file leading to the advice given by
the Government of India by communication dated 11th January 1988 to sustain his argument that the advice came to be issued for some ulterior
motive and at the instance of some ruling party M.Ps. We find that it is not necessary for us to go into the question as we have decided the issue
without reference to the Government of India''s Letter dated 11th January 1988.
In the result, the writ petitions are dismissed. However, there will be no order as to costs.
In view of the final disposal of the writ petitions, no orders are necessary in Writ Appeal No. 683 of 1988 which has been filed against an
interlocutory order in W.M.P. No. 341 of 1988 in W.P. No. 237 of 1988 and the writ appeal is accordingly dismissed. No costs.