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Judgment
T. Raja, J.—These writ petitions have been filed by four different Insurance Companies Officers'' Association seeking a writ of mandamus
forbearing the respondents from insisting Clause 2.2 and 2.3 of the Terms and Conditions given as Annexure A to ''Check off Exercise - 2009''
and also from declining to deduct the subscription of the members of the respective petitioner association from the salary and remit the same into
the account of the respective petitioner association as it has been done from the year 2004 onwards while proceeding with the ''Check off Exercise
2009''.
Since the issue involved in all the writ petition is one and the same, they are disposed of by means of this common order.
The common averments in all the writ petitions are as follows:
(i) The respective associations are registered under the trade Unions Act, 1926 and governed by their own rules and bye-laws. The employees
working in the respective insurance companies are the members of the respective associations. In an effort to discourage mushroom growth of
unions without any reasonable strength, the need for implementing the ''check off system'' was stressed. Therefore, the National Confederation of
General Insurance officer''s Association, which is the parent body of all the four non-life public sector insurance companies filed W.P. No. 6580 of
1999 seeking a writ of mandamus to introduce the check off system. This Court, while disposing of the writ petition on 29.08.2003, directed the
management of all the four non-life public sector insurance companies, the respondents herein to implement the check off system within a period of
six months from the date of the order. Thereafter, the respective respondent companies implemented the check off system in the year 2004 only
for a period of two years. Again, it was implemented for a further period of two years. While the things stood so, the respective respondent
companies issued the impugned notices introducing Clauses 2.2 and 2.3 to the Terms and Conditions for Check-Off Exercise 2009 which are the
subject matter in these writ petitions.
(ii) The impugned terms and conditions introduced in Annexure - A to the Check-Off Exercise-2000 are extracted hereunder for easy reference:
2.2 It shall be condition precedent that the Union/Associations representing Class I Officers including Associations representing SC/ST Officers
shall have its members enrolled from Officers up to and including Scale IV cadre only. Officers of Scale V and above will strictly not qualify for
Membership of the Union/Association representing Class I Officer.
2.3 It shall be a condition precedent that Union/Association representing Class I Officers including Associations representing SC/ST Officers shall
neither allow nor appoint any Officer-in-charge of any Operating Unit/Office (BO/DO/Extension Counter) to hold office bearer-ship of any level in
the Union/Association so long as they are functioning as Officer-in-charge of Operating Unit/Office of the Company. However, such Officers-in-
charge may be allowed to be enrolled as Ordinary Members of the Union/Association/Welfare Association.
The crux of the grievance of the petitioner in all the four writ petitions is that the introduction of terms and conditions under Clauses 2.2 and 2.3
in Annexure-A to Check-Off Exercise-2009 by the respective respondents directly affects the fundamental rights of the Trade Unions and its
members, more specifically, the so called terms and conditions restrict the members of officers of scale V level and excluding the officers in charge
of the Branch Office and Divisional Office from becoming officer bearer, in any union/Association thereby violating Fundamental rights guaranteed
under Article 19(1)(c) of the Constitution of India.
The learned senior counsel appearing for the respective associations would submit that the right to form an association is a fundamental right and
the same cannot be taken way by an administrative order by saying that the officers falling in Scale V cannot be allowed to become the
representative or office bearers in any union or Association. He would further submit that the impugned terms and condition to Annexure-A to the
Check-Off Exercise-2009 is an attempt to inroad the fundamental rights guaranteed by Article 19(1)(c) of the Constitution of India.
He further added that the introduction of the impugned terms and conditions will not be within the jurisdiction of the respective Insurance
Companies which are registered under the Companies Act to decide who should be the member of the respective association. Since the very
question as to who should be the member of the respective association has to be decided by the bye-laws of the respective association and when
the bye-laws have already been registered under the Trade Unions Act, the impugned terms and conditions not only run counter to the bye-laws
and rules of the respective registered trade unions, but also without jurisdiction and oppose to all cannons of fair play. The respective respondent
companies by way of bringing the impugned terms and conditions has decided to divide the well-organised trade unions and rule them on their own
way which is totally opposed to a democratic norms and fair play. On that basis, he urged this Court to allow the writ petitions.
In support of his submissions, the learned senior counsel appearing for the respective respondent companies relied on a Judgment in Ram
Bahadur Rai Vs. The State of Bihar and Others, , wherein the Hon''ble Supreme Court has held that the formation of an Association for the
ventilation of grievances in a lawful manner is a part of the constitutional right of free speech and expression, the right to assemble peacefully but
without arms and the right to form associations guaranteed by Article 19(1)(a), (b) and (c) of the Constitution. They are important and valuable
rights guaranteed by the Constitution which cannot easily be taken way.
He relied on another Judgment in Assam Oil Company Vs. Its Workmen, , the learned senior counsel appearing for the petitioner has brought to
my notice that it would not be open to an employer to dismiss his employee solely or principally for the reason that he or she had joined a trade
union. That is a fundamental right guaranteed to every citizen in this country and it would be idle for anybody to contend that the mere exercise of
the said right would incur dismissal from service in private employment. The dismissal of a workman on that ground would therefore be not
justified.
He relied on yet another Judgment in Bokajan Cement Corporation Employees'' Union Vs. Cement Corporation of India Ltd., wherein it has
been held by the Hon''ble Supreme Court that the membership of a trade union is a valuable right which can be taken away only within the clear
parameters of the Act and the Constitution of the trade union.
In reply, the learned senior counsel appearing for the respondent has contended as follows:
(i) Firstly, the respective Associations have no legal right to seek a writ of mandamus forbearing the respective respondent companies from
streamlining its administration inasmuch as the respective respondents before bringing in the so called terms and conditions in Annexure -A to
Check-Off Exercise -2009, the matter was elaborately discussed with all members of the respective associations. When this Court has directed to
implement the check off system, even at the very first instance in the year 2004, the respective Management before introducing the check off
system has made it very clear in writing that the check off system would be introduced at the discretion of the respective respondents. This was
accepted by the members of the respective associations even in the year 2003. Again, on 09.04.2009 a notice was issued to all the members
respective associations. Even before finalising the impugned terms and conditions, the respective respondents have taken all care to collect the
view and comments from the members of all the associations. Even now, except the four Associations who are before this Court, the seven other
major union have agreed for the introduction of the impugned terms and conditions and they have not challenged the same therefore, the grievance
of the petitioners that they would not be allowed to become member of any union or Association cannot be legally entertained in these writ
petitions.
(ii) Secondly, the respective respondents have no objection for any officer falling under Scale V to become a member in any of the
union/Association for the purpose of ventilating their grievance, but the only objection is that as per the impugned terms and conditions, they cannot
be a member or representative or office bearer of any union or association and any such representation in the capacity as officer-bearer of any
union or Association will not be recognised by the respondent.
(iii) Thirdly, if the officers falling in Scale V forms an association with other officers falling in Scale V, VI and VII, the respective respondent
companies have no objection and they can very well form an independent association or union and in such case, their representation will also be
considered by the respective respondents. While so, according to the learned Counsel appearing for the respective respondents, the arguments
advanced by the learned senior counsel appearing for the petitioner that the fundamental rights of such officers guaranteed under Article 19(1)(c) of
the Constitution has no substance at all.
(iv) Fourthly, since the officers falling in Scale V are posted either as Regional Managers or Chief Regional managers the Branch Officers and
Divisional Officers are brought under the supervisory and managerial control of Scale V Officers at Regional Offices. Further the officers falling in
Scale V have certain administrative powers such as transfer of employees from one place to other place within the state and deciding the
promotional avenues of the employees alongwith serving as authorities for redressal of grievances entrusted to them by Head Office. That apart,
Scale V Officers are managing around 600 employees under them controlling an insurance premium of around Rs. 150 crores. They are wholly
responsible for proper management of the Divisional and Branch offices and further when the officers falling in Scale V are posted at Head Office,
they are in charge of full fledged corporate Departments controlling all India operations. On considering the higher positions, there wil be conflict of
interest if officers of Scale V and above are allowed to become members or office bearers of the union and also hold the post of officers in charge
of the Regional offices. Therefore, the respective respondent companies have decided not to permit them to clash with their exercise of power in
their offices.
In this context, the embarrassing respondents insurance companies in order to avoid such embarrassing situation and conflict of interest in the
duties of such officers, have decided that they can be allowed to be either the officers of Scale V and above and discharge their duties assigned to
them or they can become the member of the union/Association. They cannot simultaneously allowed to discharge the duties of the Scale V officers
and above and to be continued to be office bearers of an Association representing class V and above officers.
Lastly, when there is no statutory obligation cast upon the respondents to deduct the subscription from the salary of the employees of the
respective respondent companies, the respective Association cannot take out a writ petition to impose any statutory obligation, which is not a legal
or statutory duty of the respondents.
Therefore, the learned senior counsel appearing for the respective respondents has justified the impugned terms and conditions and prayed for
dismissal of the writ petitions.
I have considered the rival submissions and I have also perused the records.
No doubt, Check-Off Exercise has been introduced by the respective respondents only pursuant to the direction of this Court in the year
2004. The said exercise has been satisfactorily continued till 2008. However, since the respective respondents have gained experience during the
past 5 years of existence of check off system, they proposed to further reform the system with a view to lend greater credibility to it and also serve
the purpose, for which it was initially introduced. Therefore, they decided to introduce the impugned terms and conditions in Annexure-A of
Check-Off Exercise-2009 While doing so, having seen that the officers belonging to Scale V are deciding the orders of transfer of employees and
also redressing the grievances of certain classes of employees working in the respondent companies, the respective respondents have decided that
they should not become the members of any association, in which the employees of the respective insurance companies are admitted as members.
At the same time, the learned senior counsel appearing for the respondents has made an explicit statement that the officers of Scale V, VI and VII
can, for the purpose of redressing their grievances and safeguarding their interests, form an individual association of their level and in that case, their
representation, if they constitute minimum 30% of the representative strength, their union or Association would also be recognised. While so, the
petitioners cannot be allowed to say that they are prevented from forming an association.
In view of the above submissions made by the learned senior counsel appearing for the respondents, the petitioners'' apprehension that they are
prevented from becoming a member in any of the association does not find any substance at all. Therefore, the impugned terms and conditions to
Annexure-A of Check-Off Exercise-2009 cannot be held unreasonable and arbitrary. Since the respondents have made it clear that the petitioners
are free to make their own bye-laws and the respondents have no intention to interfere with the so called internal affairs of the respective
associations, this Court does not find any substance to hold that the impugned terms and conditions in para 2.2 and 2.3 of Annexure-A to the
Terms and Conditions for Check-Off Exercise - 2009 are violating the fundamental rights. The logic of the respondents that the officers in Scale V
cannot hold dual post of representing the company as officer in-charge of operating union and simultaneously functioning as office bearers of the
association will lead to conflict of interest and further the same would lead to very serious breakdown of the administrative set up appears to be
acceptable, therefore, the impugned terms and conditions cannot be found fault with.
Insofar as the relief regarding the deduction of subscriptions from the salary of employees working in the respective respondent companies and
remitting the same into the account of the respective petitioner associations is concerned, it is found unequivocally clear that there is no statutory
obligation cast upon the respondents, to deduct the monthly subscription from the salary of the employees of respondents, who are members of the
respective associations and remit the same into the account of the respective associations. When the petitioners failed to show that the respondents
are legally obliged to do so, this Court cannot compel the respondents to do any such non statutory or non legal obligatory duties. However, it was
brought to the notice that the respondents have hitherto deducted so, but dispensed with the system recently and the same has in fact been
accepted by the seven other major unions. It is only the petitioners who are complaining of the same without any basis. Therefore, this Court is of
the view that when out of 11 union when 7 other major unions have already accepted the policy of the respondents and not challenged their action
in not deducting the subscription due to the respective associations from the employees, who are the members of the respective associations, the
petitioners without having any legal basis cannot seek any relief.
In view of the foregoing discussions, the writ petitions fail and the same are accordingly dismissed. No costs. Consequently, connected MPs
are closed.