JUDGMENT Page 538
1. The Petitioner in Writ Petition No. 2544 of 2004 has impugned circulars/letters dated 14.1.2004, 13.4.2004, 23.8.2004 and 27.8.2004. By the circular dated 14.1.2004 the Government of India, Ministry of Labour, Office of the Regional Labour Commissioner, addressed to various union of Respondent No. 1, stated that the Government of India had decided to undertake verification of membership of the unions operating in Respondent No. 1, Air India, through secret ballot. By the letter dated 9.2.2004 the Government of India, Ministry of Labour, conveyed a meeting requesting the various unions operating in Respondent No. 1 to attend the meeting with all relevant documents for the purpose of verification of membership of unions operating in Respondent No. 1 through secret ballot. A specimen copy of consent was enclosed. The proforma of the consent form also had at its subject "Verification of membership of unions operating in Air India". The undertaking in the proforma was in respect of the consent for holding secret ballot for the purpose of recognition of the unions under the Code of Discipline. By the letter dated 23.8.2004 the Deputy Chief Labour Commissioner stated that as no consensus had been arrived at between the parties relating to the secret ballot election, it has been decided to hold the election as per the Chief Labour Commissioner's letter dated 13.4.2004 and 13.5.2004.
2. In Writ Petition No. 1452 of 2005 the Petitioners have challenged a Notification dated 24.3.2005 issued by the Deputy Chief Labour Commissioner, notifying a schedule for holding a secret ballot.
3. In support of the contention that the secret ballot method for the purpose of verification of membership of unions is arbitrary, Mr. Ashok Shetty and Mr. Deshmukh, the learned Counsel appearing on behalf of the Petitioners in Writ Petition Nos. 2544 of 2004 and 1452 of 2005 relied essentially upon the judgments of the Supreme Court in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay and Ors., (1990) 2 SCC, 344 and Page 539 Association of Engineering Workers v. Dockyard Labour Union and Ors., 1995 Supp (4) SCC, 544. The latter judgment is of three learned Judges of the Supreme Court. They also placed reliance on a judgment of a Division Bench of this Court in Association of Engineering Workers v. Dockyard Union, 1992 II CLR, 382 . There was no dispute about what the ratio of these judgments is. We may, for convenience, refer only to paragraph 2 of the judgment in Association of Engineering Workers v. Dockyard Labour Union and Ors., 1995 Supp (4) SCC, 544 which reads as under:
"2. Section 11 of the Act provides for making an application for recognition of a union. It says that any union which has for the whole of the period of six calendar months immediately preceding the calendar month in which it so applies under this section, a membership of not less than thirty per cent of the total number of employees employed in any undertaking, may apply in the prescribed form to the Industrial Court for being registered as a recognised union for such undertaking. The plain language of this section makes it crystal clear that the requirement for recognition is that the union should have for a period of six months immediately preceding the making of an application, a membership of not less than thirty per cent of the total number of employees employed in the said undertaking. Section 12 next provides that on receipt of an application from a union for recognition under Section 11, the Industrial Court shall, if it finds the application on a preliminary scrutiny to be in order, cause notice to be displayed on the notice-board of the undertaking declaring its intention to consider the said application on the date specified in the notice, and calling upon the other union or unions, if any, having membership of employees in that undertaking to show cause, within a prescribed time, as to why recognition should not be granted to the applicant-union. If, after considering the objections, if any, that may be received and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the conditions requisite for registration specified in Section 11 are satisfied, the Industrial Court has to grant recognition to the union and issue a certificate in that behalf in the prescribed form. Section 13 next provides that for cancellation of recognition and says that the Industrial Court shall cancel recognition of a union if after giving notice to such union to show cause why its recognition should not be cancelled, and after holding an inquiry, it is satisfied that it was recognised under mistake, misrepresentation or fraud. In the present case, the petitioner-union had made an application for recognition under Section 11. Instead of verifying the fact whether the conditions for recognition are satisfied in the manner set out in Sub-section (2) of Section 12, the Industrial Court resorted to ballot, albeit at the instance of the parties and by their consent. This Court in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay, (1990) 2 SCC 344 after considering the scheme of the relevant provisions of the Act relating to recognition observed that Page 540 even if secret ballot method is resorted to with the consent of parties, such consent cannot cure the illegality of substitution of a procedure not prescribed by the Act. In other words, this Court came to the conclusion that secret ballot was a procedure not recognised by law, it was in fact alien to the Act and, therefore, that method or mode could not be accepted as valid for the purposes of recognition. We see no reason to depart from the view taken in the aforesaid decision nor are we satisfied that in the instant case the method resorted to by the Industrial Court was one consistent with the provisions of the statute. Even if the method of secret ballot is resorted to with the consent of parties and care has been taken to see that only those employees who had put in more than six months of service were allowed to cast their preference for the purpose of determining allegiance that was not a proper method for verification of the condition required for recognition under Section 11 and hence it was a method which was clearly alien to the statute. We, therefore, do not see any reason to depart from the view taken by the Division Bench of the Bombay High Court based on the decision of this Court in Automobile Products case. We, therefore, see no merit in this petition and hence the same is dismissed. The interim stay granted earlier will stand vacated."
4. However, on behalf of the Respondents Union, it was contended by Mr. J.P. Cama and Mr. Bukhari that the ratio of these judgments must be confined to the provisions of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. The judgments, according to them, have no applicability while considering the verification of membership of unions under the Code of Discipline. It is common ground that the Code of Discipline applies to Respondent No. 1. On behalf of the Petitioners on the other hand, it was contended that it is the process of secret ballot itself which was stuck down as being arbitrary and that the ratio of the aforesaid judgments apply irrespective of the enactment, code/agreement that is applicable in a given case.
5. Mr. Cama and Mr. Bukhari relied upon an unreported judgment of a Division Bench of this Court dated 5th May, 1998 in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors. in Writ Petition No. 1785 of 1997. Firstly, it must be noticed that the judgment of the three Judge bench of the Supreme Court in Association of Engineering Workers v. Dockyard Labour Union and Ors. was not noted in the judgment. Further, the question whether the ratio of the judgments relied upon by the Petitioners of the aforesaid judgments of the Supreme Court, was confined only to proceedings under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act or not, was not considered by the Division Bench. Moreover, the Division Bench has held that the dictum laid down in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay and Ors., was that the procedure should not be completely Page 541 derogatory to the scheme of the Act. We do not find at least the judgment of the three Judge bench in Association of Engineering Workers v. Dockyard Labour Union and Ors., laying down such a restricted rule. The ratio, prima-facie, appears to be wider.
6. Dealing with the judgment of the Supreme Court in Food Corporation of India Staff Union v. Food Corporation of India and Ors., 1995 Supp (1) SCC, 678 relied upon by Mr. Cama and Mr. Kothari, the Division Bench in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors., extracted only a part of the observations. It is pertinent to note that in addition to the words quoted in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors., the Supreme Court also observed:
"All concerned would however, like to see that this method is so adopted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking."
It is also pertinent to note, as pointed out by Mr. Deshmukh, that in paragraph 2 the Supreme Court observed :
"In the appeal at hand, the Food Corporation of India (FCI) and the union representing the workmen have agreed to follow the "secret ballot system" for assessing the representative character of the trade unions. We have, however, been called upon to lay down as to how the method of secret ballot should be tailored to yield the correct result."
(emphasis supplied)
7. Mr. Deshmukh submitted that the order was by consent of parties and that the same therefore did not constitute ratio. Nor did the judgment distinguish the above judgments on any grounds or even hold that they were no longer good law. Mr. Deshmukh and Mr. Shetty further submitted, not without force, that the question as to whether the judgment in Food Corporation of India Staff Union v. Food Corporation of India and Ors. constituted ratio, was not considered by the Division Bench in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors. More important, they submitted, again, not without force, that the Division Bench in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors. did not consider the question as to whether the earlier judgments of the Supreme Court had been distinguished.
8. We do not intend expressing any views on the merits of the rival contentions between the parties. However, in view of the submissions of Mr. Deshmukh and Mr. Shetty, we are of the opinion that the questions Page 542 raised by them are of great importance and arise in a number of matters. We are also of the view that the matter requires further and detailed consideration by a larger bench of this Court even in the event of it being held that the ratio of the judgment of the Division Bench in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors. is to the effect that the judgments of the Supreme Court relied upon by the Petitioners, apply only in cases under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act and not where the Code of Discipline applies.
9. In our opinion, inter-alia, the following questions of law arise for consideration :
i) Whether the ratio of the judgments of the Supreme Court in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay and Ors., 1990 II CLR, 344 (SC) and Association of Engineering Workers v. Dockyard Labour Union and Ors., 1993 I CLR, 637 (SC) and the judgment of the Division Bench of this Court in Association of Engineering Workers v. Dockyard Union, 1992 II CLR, 382, applies to the verification of membership of a union in establishments governed by the Code of Discipline or whether it applies only to cases under the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act ?
ii) Whether the method of secret ballot to ascertain the majority of membership is derogatory of the Code of Discipline ?
iii) Whether the judgment of the Division Bench of this Court in Oil and Natural Gas Commission Karmachari Sanghatana v. Ministry of Petroleum and Ors. in Writ Petition No. 1785 of 1997 was correctly decided ?
iv) Whether the method of secret ballot to ascertain the majority of membership would in the facts of this case be arbitrary?