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Judgment
K. Chandru, J.—Heard the arguments of Mr. V. Prakash, learned Senior Counsel appearing for Mr. K. Sudalaikannu, learned Counsel for
the petitioner in W.P. No. 28891 of 2012, Mr. R. Yashod Varadan, learned Senior Counsel appearing for the impleading party, namely Tamil
Nadu Bank Employees Federation of India/the petitioner in the other two Writ Petitions, seeking to implead them as a party to the Writ Petition in
W.P. No. 28891 of 2012, Mr. K. Marimuthu, learned Counsel for the petitioner forum in W.P. Nos. 2830 and 3104 of 2013, Mr. M.
Christopher, learned Standing Counsel for Tamil Nadu State Apex Co-operative Bank and Mr. E.M.S. Natarajan, learned Government Advocate
(Co-operatives), on taking notice for the official respondents in all these Writ Petitions.
In W.P. No. 28891 of 2012, the petitioner is Tamil Nadu Co-operative Bank Employees Association affiliated to AIBEA AND AICBEF,
represented by its General Secretary. In that Writ Petition, the petitioner trade union challenges the Circular issued by the Registrar of Cooperative
Societies, Chennai dated 27.9.2012. By the impugned circular, the Registrar of the Society informed the Special Officer of the Tamil Nadu State
Apex Co-operative Bank and other trade unions working in the said establishment that a Committee has been constituted to examine the Charter
of demands submitted by various service Associations. The Committee was to be headed under the Chairman of the Registrar of Cooperative
Societies. The Committee will hold discussions with four Service Associations for finalizing the revised pay scales of the employees of the District
Central Co-operative Bank and other service benefits.
But, however, another trade union by name Tamil Nadu Co-operative Bank Employees Forum has sent a letter on 16.9.2012 stating that their
representatives should be invited to participate in the discussions held for the wage revision for the employees of District Central Co-operative
Bank. It was felt by the Registrar that inclusion of one more Association will improve the industrial relations and also strengthen the morale of the
employees. It was decided to include the said Association also to participate in the discussions for wage revision of the employees. Therefore, he
directed that the two representatives of the Forum shall be permitted to represent their association during the discussions.
For the sake of convenience, the first association is known as ""Employees Association"" and the rival association, namely the petitioner in W.P.
Nos. 2830 and 3104 of 2013, is mentioned as ""Employees Forum"".
As soon as the receipt of the said Circular, the Employees association sent a representation on 12.10.2012 to the Registrar of the Co-operative
Societies as well as to the Commissioner of Labour in his capacity as Chairman of the Evaluation and Implementation Committee, demanding that
they should be recognised as the sole bargaining agent in view of the fact that they have majority of the employees, namely, 70% and they further
requested not to allow other trade union or Federation for negotiation and that the employees forum is not even a registered body.
Immediately after sending such representation, the Writ Petition came to be filed within four days on 16.10.2012 stating that the Circular issued
by the Registrar of Co-operative Societies dated 27.9.2012 (sent on 3.10.2012) was illegal and it should be set aside and for a direction to the
official respondents, namely respondents 1 to 4 to ascertain the majority status of the union representing the work force covered by the wage
negotiations and that the wage negotiations should take place only with the association with enjoys majority of the membership of the said workers
and no other union.
When that Writ Petition came up on 25.10.2012, Notice of Motion was ordered returnable by 8.11.2012 and interim stay was granted only till
that date. But, however, no further extension of interim order was granted by this Court.
In view of the interim order granted by this Court, the Registrar of Co-operative Societies sent a letter to the Tamil Nadu State Apex Co-
operative Bank on 26.10.2012 that the Employees Forum need not be invited to attend discussions on 26.10.2012 or any subsequent discussions
until further order. This prompted the Employees Forum to file two subsequent Writ Petitions. In the first Writ Petition in W.P. No. 2830 of 2013,
the Employees Forum seek for a direction to the respondents 1 and 3, namely the Government and the Additional Commissioner of Labour,
Chennai to consider their representations dated 17.12.2012, 19.12.2012 and 26.12.2012 and to call the union for settling the wage revision
negotiation with the said Apex Co-operative Bank. They have submitted a Charter of Demands on 17.12.2012. When that Writ Petition came up
on 5.2.2013, this Court directed to post W.P. No. 28891 of 2012 along with that Writ Petition.
In the second Writ Petition filed by the Employees Forum, namely, W.P. No. 3104 of 2013, they seek for a direction to consider (heir
representations dated 19.12.2012 and 26.12.2012 and for a consequential direction to the Additional Commissioner of Labour to conduct
election in the State Apex Co-operative Bank to prove the employees forum''s majority.
Before dealing with the demand made by the Employees Forum, it has to be seen whether the Writ Petition filed by the Employees Association
is legally justiciable. In the impugned Circular dated 27.9.2012, the Registrar of Co-operative Societies merely directed the Special Officer to
invite the Employees Forum by allowing them to have two representatives for discussions. This was on the discretion that their presence will
strengthen the morale of the employees and improve the industrial relationship.
Before dealing with the legality of the said Circular, it has to be seen whether there is any statutory obligation for recognising any union in the
State of Tamil Nadu. Though there are registered trade unions, there is no special law in the State of Tamil Nadu (In the State of Maharashtra and
Gujarat, there is a law compelling the employer to recognise a particular trade union as the sole bargaining agent for the purpose of dealing with the
employees in the said establishment). In the absence of any law for recognizing any particular trade union as the sole bargaining agent, the Writ
Petition seeking either for direction to bring a particular trade union to participate for negotiation or election should be conducted to ascertain the
sole bargaining agent, cannot be legally justiciable.
In fact, the employees association made a request to the Commissioner of Labour that their union must be recognised as sole bargaining agent,
in view of the fact that they had majority of the employees and the Employees Forum, which have not the majority of the employees, should not be
called for any negotiation, which does not have any registration and even the other trade unions should not be called for any negotiation. But, it
must be noted that as per the impugned Circular, the employees forum was added as a new party at the Negotiation table. The invitation was also
sent to Anna Thozhirsanga Peravai (ATP), All India Bank Employees Association, Bank Employees Federation of India (BEFI), Labour
Progressive Federation (LPF).
The argument that the Employees Forum is not a registered body is sought to be denied by the Employees Forum stating that they were
originally functioning in the name of Dr. Ambedkar Co-operative Bank Employees Union, Chennai with Registration No. 232/P.T.K. Subsequent
to the renaming of the union, it has been registered as 3468/CNI. In the absence of any legal right for the recognition of a particular union either as
sole bargaining agent or negotiating agent, the Writ Petition seeking for a direction to recognise them, is not permissible.
Admittedly, the issue relating to union''s recognition is non-statutory in character and covered by the guidelines evolved in tripartite labour
agreement, pursuant to which the Evaluation and Implementation Committee under the chairmanship of Registrar of Co-operative Societies has
been constituted. The employees forum approached them with the representations mentioned above. Until such time, the said Chairman and
Commissioner of Labour identifies to evaluate the strength of the union and make recommendation to the employer, the Court cannot give any such
direction.
Already, a Division Bench of this Court in K.V. Sridharan and S. Ragupathy Vs. S. Sundaramoorthy and The Principal Chief Postmaster
General, held that a Writ Petition seeking for such directions is not maintainable in the absence of any law relating to the same. In paragraph No. 4,
it was averred as follows:
4... It may be noted in this connection that these private bodies are not enforcing any statutory direction by filing such Writ Petitions inasmuch in the
State of Tamil Nadu, there is no law relating to grant of recognition to a trade union, nor is there any law relating to holding of election of such
trade unions. These matters are covered by general law and as such, the disputes in this regard should be settled by Civil Court.
The efficacy of recognition under the Code of Discipline and the power of this Court to order elections came to be considered by this Court in
Shanmugam v. The Government of Tamil Nadu, in W.P. No. 19426 of 2011, dated 19.9.2011. This Court in paragraphs 24, 31, 41, 42, 43, 45
and 46 had observed as follows:
Mr. R. Yashod Varadhan, learned Senior Counsel appearing for the 11th respondent submitted that the writ petition itself is not maintainable
not only on the ground of suppression of materials facts in the affidavit, but also in the earlier writ petition similar relief was claimed. He also
submitted that such inter-union disputes cannot be raised in the absence of any law providing for same. He referred to a judgment of a Division
Bench of this Court presided by A.K. Ganguly, C.J. (as he then was) in K.V. Sridharan and S. Ragupathy Vs. S. Sundaramoorthy and The
Principal Chief Postmaster General, He drew an attention of this Court the following passage found in paragraphs 3 and 5 which reads as follows:
3....The said Act does not make any provision for recognition of such a union. Any recognition of union, even if it is a union relating to the
employees of the Central Government, is governed by some departmental circulars. Those circulars are administrative in nature and not statutory.
Therefore, those circulars also cannot be enforced in a writ petition. However, unfortunately, with regard to disputes arising out of the conduct of
elections of such trade unions for electing its Office-Bearers, various writ petitions are filed before this Court and some of them are entertained. But
in none of these cases, this question has ever been discussed. At least, no such decision has been brought to the notice of this Court.
5....It may be noted in this connection that these private bodies are not enforcing any statutory direction by filing such writ petitions inasmuch in the
State of Tamil Nadu, there is no law relating to grant of recognition to a trade union, nor is there any law relating to holding of election of such
trade unions....
The question of granting of recognition of the trade union in the State of Tamil Nadu is not based upon any statutory right and that it has
already been noted by a Division Bench of this Court in K.V. Sridharan''s case (cited supra). Ever since the Code of Discipline adopted in the
tripartite labour conference was utilized. Since in the absence of any law in the trade union recognition and any recognition granted by any
employer is only based upon the code of discipline evolved in a tripartite labour conference. The said code in relation to the criteria for recognition
of the union may be reproduced as follows:
Criteria for recognition of Unions:
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 subscriptions for at least three months during the period of six months immediately preceding the reckoning.
A union may claim to be recognised as a representative union for an industry in a local area if it has a membership of at least 25% of the
workers of that industry in that area.
When a union has been recognised, there should be no change in its position for a period of two years.
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 per cent or more of the workers of that establishment it should have the right
to deal with matters of purely local interest, such as, for instance, the handling of grievances pertaining to its own members. All other workers who
are not members of that union might either operate through the representative Union for the industry or seek redress directly.
In the case of trade union federations which are not affiliated to any of the four central organisation of labour the question of recognition would
have to be dealt with separately.
Only unions which observed the Code of Discipline would be entitled to recognition.
The Food Corporation of India Staff Union''s case (supra) does not lay down any law and it was an order passed with the consent of parties.
What is binding is the ''ratio decidendi'' in case was the observation made by a Full Bench of the Bombay High Court vide its decision in Air India
Employees Guild Vs. Air India Ltd. and Others, In that case, they quoted with approval a decision of our Division Bench in the case relating to
Southern Railway Mazdoor Union v. Railway Board and others, dated 17.10.2003 made in W.P. No. 3168 of 2002. In paragraphs 6 and 7, the
Bombay Full Bench observed as follows:
In Food Corporation [1995 (1) LLN 783] (vide supra), parties consented to follow the secret ballot system for assessing representative
character of the trade unions. This has been noted by the judgment of the Division Bench of this Court in Mormugao Port Trust M.O.H.P. v.
Chairman Marmugao Port Trust, (Panaji Bench) in Writ Petition No. 9 of 2000 decided on 3rd July, 2000. This has also been noted by the
Division Bench of the Madras High Court in the case of the Southern Railway Mazdoor Union v. Railway Board and others, decided on 17th
October, 2003, in Writ Petition No. 3168 of 2002. The judgment therefore, in Food Corporation of India (vide supra) being by consent, does not
lay down any law. What is binding is the ratio decidendi.
Once the Code of Discipline is applicable to the industry, it is that Code that must be followed. The Code of Discipline does not provide for
determining the majority character of the union by secret ballot. Is it then open to a Court exercising its extra-ordinary jurisdiction to substitute a
procedure for determining the representative character of the union by one not provided for by the Code of Discipline and not greed to by all the
relevant parties. The judgment of the Division Bench proceeded on the assumption that the predominant feature of the Code of Discipline was to
provide for recognition on the basis of criteria of majority and how that majority can be ascertained was incidental to the main scheme and that the
device of secret ballot would not be derogatory to the scheme of the Code of Discipline. What the Court did was to read a procedure for
determining the majority character of the union not provided for by the Code of Discipline. The learned Bench also did not examine the procedure
laid down in the Code of Discipline to test the argument whether the method of secret ballot was in consonance with the procedure for verification
of membership to determine the majority character of the union. This important aspect was neither considered nor answered by the learned
Division Bench. We will refer to that procedure whilst answering the other questions, which have been referred. Once the Code of Discipline
applies to the industry and the parties had agreed to follow the Code of Discipline, it is really not open to a Court, to substitute its judgment in
place of the agreed procedure for ascertaining the majority of the union as provided for in the Code of Discipline, whatever may be the merits or
demerits of the verification procedure. The right to provide a methodology is in the Legislature and failing legislation in the executive. A Writ Court
can issue direction so as to make the relief to be granted effective. It cannot however, by its judgment decide as to what is the best method when
the method is already laid down by a competent organ under the Constitution. At the highest, if the method is challenged, it can if grounds are
available, declare the same as being unconstitutional. In our opinion, the law as laid down in O.N.G.C. is contrary to the procedure for verification
of membership as provided for in the Code of Discipline and consequently the judgment in O.N.G.C. stands overruled.
The four issues that came up for consideration before that Full Bench of the Bombay High Court was set out in para 1 of the judgment and for
the purpose of this case, the first two issues framed by the Full Bench will be relevant and they are as follows:
(1) Whether the ratio of the judgment of the Supreme Court in Automobile Products of India Employees'' Union Vs. Association of Engineering
Workers, Bombay and others, and the judgment (of the Division Bench of this Court) in Association of Engineering Workers v. Dockyard Labour
Union and Ors., 1995 Supp (4) SCC 544 and the judgment of the (Division Bench of this Court) in Association of Engineering Workers Vs.
Dockyard Labour Union and Others, applies to the verification of membership of union in establishment governed by the Code of Discipline and
whether it applies only to cases under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act?
(2) Whether the method of secret ballot to ascertain majority is derogatory to the Code of Discipline?
The Full Bench answered those two questions in paragraphs 14, 19(1), 17 and 19(2) and they may be extracted below:--
Issue No. 1:
From the discussion with reference to the judgments it would be clear that the issue was decided, considering the statutory provisions under
M.R.T.U. and P.U.L.P. Act. The issue before the Supreme Court in both the cases, was whether the procedure for recognition was in consonance
with the provisions of the M.R.T.U. and P.U.L.P. Act. It is, therefore, clear, that what was considered in those judgments were the provisions of
the M.R.T.U. and P.U.L.P. Act. What was in issue for consideration before the Supreme Court was whether holding of secret ballot under the
provisions of the M.R.T.U. and P.U.L.P. Act was in consonance with the provisions of the Act for deciding who commanded the majority or
whether it was contrary to the provisions of the Act. The Supreme Court held that, such a procedure was alien to the Act. That is the ratio
decidendi of those judgments. As pointed out on behalf of the petitioners by Sri Deshmukh, what the Court must do is to cull out the ratio
decidendi of the judgment. What would be binding under Article 141 of the Constitution would be that ration decidendi. Our attention for that
purpose was invited to the judgment in the matter of Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., The matter in issue
was reopening of the original assessment. What was under consideration was the interpretation of section 147 of the Act and the object of
reassessment proceedings. Whilst answering the issue, the Supreme Court observed as under:
Such an interpretation would be reading that judgment totally out of context in which the questions arose for decision in that case. It is neither
desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under
consideration and treat it to be the complete ''law'' declared by this Court. The judgment must be read as a whole and the observations from the
judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the
questions involved in the case in which it is rendered and, while applying the decision to a later case, the Courts must carefully try to ascertain the
true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the
questions under consideration by this Court, to support their reasonings.
Applying this principle, we are clearly of the opinion that the two judgments of the Supreme Court referred to earlier would apply only for
recognition of unions governed by provisions of the M.R.T.U. and P.U.L.P. Act. That ratio cannot be applied to verification of membership of an
union in establishments governed by the Code of Discipline and or those not covered by the provisions of the M.R.T.U. and P.U.L.P. Act.
In the light of that, we may answer the reference as under:
(1) The ratio of the judgment of the Supreme Court in Automobile Products of India Employees Union, 1990 (6) FLR 369 (SC) : (1988-90)
SCLJ 707 (supra) and Association of Engineering Workers, (supra) and the judgment of Division Bench in Associated Engineering, 1991 (2)
L.L.N. 595 (supra), applies to verification of membership of the unions and establishments, covered under the provisions of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act.
Issue No. 2:
On a consideration of the provisions and the judgments, what follows is that secret ballot would only indicate preference of an individual
employee on the date the secret ballot is held for a particular union, even if he be not its member. It cannot be a method for verification of
membership of the union in terms of the Code of Discipline for the particular period of verification of membership. The method of secret ballot for
ascertaining majority of membership is, therefore, derogatory to the Code of Discipline.
19(2) The method of secret ballot to ascertain majority of membership is derogatory to the Code of Discipline.
The Division Bench in MRF United Workers Union Vs. Government of Tamil Nadu and Others, though did not refer to the ratio of the Full
Bench of the Bombay High Court in Air India''s case (supra) more or less came to the correct conclusion while giving its directions. It confined
itself in directing the authorities of the labour department to follow the ''Code of Discipline'' procedure (i.e., verification method) in granting
recognition. The Division Bench headed by H.L. Gokhale, C.J. (as he then was) did take note of the fact that secret ballot was not part of any
statutory requirement under law. It is necessary to extract para 37 of the judgment which is as follows:
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 following in different undertakings. Further, it is also
in tune with the provisions of the different statutes in different States.
As already noted, this State do not have any law for recognition of trade union and despite NLC''s recommendations, no law has been made.
Even the only law attempted to be enacted was the Industrial Relations Bill, 1978 which intended to provide 65% votes as the criteria to act as a
sole bargaining agent. The State of Tamil Nadu had not issued either any statutory or executive order in the matter of recognition. The previous
elections in the Transport industry referred to by the Division Bench, i.e., election which was held in the year 1998, pursuant to the order of the
earlier Division Bench provided for representative unions and that there were four representative unions. They were elected only for the purpose of
signing the settlement and not for any other purposes. Even the earlier writ petition and W.A. No. 1425 of 2006 which was filed by one trade
union wanted itself along with the other three unions for getting included for the talks for wage negotiations. Therefore, when this Court granted a
direction to hold secret ballot, it is only for the purpose of negotiating a wage settlement. Any other construction would erase the entire history of
the trade union movement in the transport sector in this State and nullify the other unions'' existence.
As per the Code of Discipline, when the advises given by the Evaluation and Implementation Committee are non-statutory in character, it is
open to the employer to invite such of the unions which they consider are necessary for negotiating with reference to the Charter of the demands.
In the present case, the impugned order dated 27.9.2012 is only advisory, wherein the Registrar directed, apart from four associations, that the
employees forum also should be invited. This Court do not consider any case is made out to impugn the Circular, in the absence of any legal or
enforceable right on the part of the petitioner employees association. Hence, the Writ Petition No. 28891 of 2012 stands dismissed. However, it is
always open to them to persuade the Commissioner of Labour to assess the relative strength of each union and advise the employer accordingly.
The connected Miscellaneous Petitions in M.P. Nos. 1 and 2 of 2012 stand closed. No costs.
In view of the disposal of the Writ Petition No. 28891 of 2012, it is unnecessary to implead the Employees Forum/petitioner in W.P. Nos.
2830 and 3104 of 2012 for impleading them as 8th respondent in W.P. No. 28891 of 2012. Hence, M.P. No. 3 of 2012 in W.P. No. 28891 of
2012 stands dismissed.
The other two Writ Petitions filed by the Employees Forum is to consider the Charter of the Demands submitted by them to the respondents.
Since, admittedly, by Circular dated 27.9.2012, the Employees Forum has also been allowed to participate in the negotiation, pursuant to the
Charter of demands, issued by various associations, the Writ Petition No. 2830 of 2013 has become infructuous as it is unnecessary to give any
such direction to the respondents. Hence, Writ Petition No. 2830 of 2013 stands dismissed as infructuous. No costs.
Similarly, in Writ Petition No. 3104 of 2013, the petitioner is seeking for a direction to conduct election for ascertaining the majority strength of
each union. As already this Court has dismissed the Writ Petition filed by the Employees Association in W.P. No. 28891 of 2012 holding that such
a Writ Petition is not maintainable, the same reasoning will also apply to the case on hand. Hence, Writ Petition No. 3104 of 2013 also stands
dismissed. No costs. In the result, all the writ petitions stands dismissed. No costs.