Bombay High Court
All India Bank Of Maharashtra Employees ... vs The Bank Of Maharashtr And Anothera on 2 August, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:18334-DB
905-WP-1884-2021(Judgment).odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1884 OF 2021
All India Bank of Maharashtra
Employees Federation
(Through its General Secretary,
Devidas S/o. Ramchandra Tuljapurkar,
Age: 62 years, Occu.: Retired Employee of
the Bank of Maharashtra)
having his Office at C-3, Sector N-1,
Town Centre, CIDCO, Aurangabad,
Tal. & Dist. Aurangabad ... PETITIONER
VERSUS
1. The Bank of Maharashtra
(A Government of India Undertaking)
Through its Managing Directgor,
Central Office, "Lokmangal",
1501, Shivaji Nagar, Pune - 411 005
2. The Union of India ... RESPONDENTS
....
Mr. U. M. Bodshetty, Advocate for the Petitioner
Mr. Sudhir Talsania, Senior Advocate a/w Mr. Ajay Deshpande,
Advocate for Respondent No.1
....
CORAM : RAVINDRA V. GHUGE AND
Y. G. KHOBRAGADE, JJ.
DATE : 02.08.2024
ORAL JUDGMENT (Per - Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
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2. The Petitioner before us is a trade union, which is
undisputed. The Petitioner has put forth prayer clause (B), as under:-
"B. By a Writ of Mandamus or any other appropriate writ,
order, or directions in the like nature,
i) the impugned Sub Clause (d) of the Clause 6 of the
Employees Grievances Redressal Policy as approved by
the Board of Directors of the Respondent Bank on 22 nd
November, 2019 and as Circulated by the Bank
Administration on 30th November, 2019 vide letter
No.AX1/ST/BM/Cir.93/2019-20, may please be quashed
and set aside
AND
ii) the 1st Respondent-Bank may please be directed to
delete the impugned Clause (d) of the Clause 6 of the
said Employees Grievances Redressal Policy AND
(iii) further the 1st Respondent Bank may also please be
directed to modify the said Policy to allow
representation/participation of Office Bearers of the
Petitioner-Federation (Recognized Union) who are retired
employees of the 1st Respondent Bank."
3. The Petitioner has challenged clause 6 of the Employees
Grievance Redressal Policy of the Respondent bank, approved by it's
Board of Directors on 22.11.2019 and circulated by vide
communication dated 30.11.2019. The challenge is posed more
specifically to Sub Clause (d) of Clause 6, which prohibits
participation of retired employees of the bank in the meetings of the
grievance redressal committee. By Clause 6(d), the bank has
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permitted only those elected office bearers of the union who are 'in-
service' employees of the bank, to participate in the grievance
redressal committee meetings. The Employees' Grievance Redressal
Committee is constituted under Clause-viii of Clause-II of the Code of
Conduct and Discipline, which is a part of the Memorandum of
Settlement signed with the Employees federation, dated 22.10.1988.
SUBMISSIONS OF THE PARTIES
4. The grievance of the Petitioner Employees Federation is
limited only to Clause 6(d), by which, though a person is elected as
an office bearer of the union in order to participate in the wage
revision negotiations or demands negotiations and to represent the
union which is the sole bargaining agent in the bank, would not be
permitted to participate in the grievance redressal committee's
meetings, if he has retired from the service. The Petitioner union is
relying upon a judgment delivered by the Calcutta High Court dated
23.12.2022, reported in MAT 83 of 2019, Writ Petition Appeal
No.29480 of 2017 (UCO Bank Vs. All India UCO Bank Officers
Federation and Others), with COT No.26 of 2019 (All India UCO
Bank Officers Federation and Others Vs. UCO Bank and Others).
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5. The learned Advocate for the Petitioner points out that
the learned Division Bench of the Calcutta High Court has recorded
the facts of the case in paragraph numbers 4 to 10, wherein, an
identical situation was brought before the Calcutta High Court. The
union was aggrieved by the fact that only serving officers/employees
of the union were permitted to participate in the
meetings/discussions/negotiations with the management. All those
who had retired, notwithstanding that they were elected as the union
office bearers, were not permitted to participate in the meetings for
representing the members of the union.
6. The learned Advocate then points out that the Calcutta
High Court held in favour of the union, in paragraph numbers 20 to
36, which read as under:-
"20. Thus, it is evident from the aforesaid Rules of the
respondent no. 1 Federation that in case the ordinary member
happens to be an office-bearer of the association, the Central
Executive Committee may allow such ordinary member to
continue as office-bearers of the Federation even after his
retirement from service. Similarly, a life member may also be
allowed to continue as office-bearers in the same position as
is/was held by them prior to their retirement from Bank's
service till next Triennial Conference.
21. In a democratic set up, the members of an association
have a right to elect from amongst them the office-bearers of
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the association upon whom management of the affairs of the
Federation shall be entrusted. The members of the Federation
are the best persons to decide as to who are competent to
manage the affairs of the Federation.
22. Neither the 1926 Act nor the Constitution of the
respondent no. 1 Federation prohibits a retired employee from
continuing as well as performing the duties as an office-bearer
of the respondent no. 1 Federation. The policy decision of the
Bank is inconsistent with the provisions of the 1926 Act and
this Court, therefore, holds the same to be an arbitrary one.
23. The management of the Bank sought to justify their
decision of imposing restriction on the ground that only the
serving officers shall represent the case of the serving officers in
the best possible manner. The restriction imposed by the Bank
management in the garb of policy decision, in the considered
view of this Court, amounts to infringing upon the right of the
members of the Federation to elect their office-bearers. The
effect of the policy decision is that the members cannot elect
retired persons as office bearers of the Federation though there
is no such restriction either in the 1926 Act or the Constitution
of the Federation. The selection and/or choice of the office-
bearers falls within the exclusive domain of the members of the
Federation and management cannot, in the garb of policy
decision, infringe upon such right of the members. The
members of the association are the best persons to decide who
shall represent them in the negotiations with the management
of the Bank and such choice cannot be left to the sweet will of
the management of the Bank. This Court is, therefore, of the
considered view that office-bearers of the Federation who has
since retired from service cannot be debarred by the
Management of the Bank from participating in the negotiations
with the management of the Bank.
24. The Hon'ble Single Judge after taking note of the
undisputed factual position that the respondent no. 1
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Federation is a registered Majority Organization of Officers and
that the respondent no. 2 is a duly elected office-bearer as a life
member of it, was right in holding that the Bank in formulating
its policy decision is in effect refusing or has refused to
negotiate.
25. The Madras High Court in the case of L.
Balasubhramaniam (supra) after considering the provisions laid
down in the explanation to Section 22(2) of the 1926 Act and
taking note of the fact that the bye-laws of the Union do not
prohibit office-bearers to continue in such post even after their
retirement held that the office-bearers of the Union even after
their superannuation are entitled to participate in the
negotiations and discussions with the management of the Bank
pertaining to employer-employee relationship. The Madras
High Court distinguished the judgment in the case of State
Bank of India Staff Association (supra) by noting that the rules
of the association do not permit any ordinary/honorary
member to occupy or continue in any post in the Central
Committee. The decision of the Madras High Court supports the
view taken by this Court.
26. The sheet anchor of the Bank is the decision of the
Hon'ble Supreme Court in the case of State Bank of India Staff
Association (supra). In the said reported decision, the Staff
Federation followed a policy that none but a serving employee
has to represent Federation or Circle Union / Association at all
levels in bilateral forums. The appellant no. 2 in the said
reported decision was elected as the General Secretary when he
was an ordinary member, but after his retirement from service
he was not elected as an honorary or a temporary member. On
such factual background, the Hon'ble Supreme Court held that
the said appellant cannot legitimately claim his continuance as
an ordinary Member and General Secretary of the Union after
his retirement from service and, therefore, cannot claim a right
to negotiate with the management as a representative of the
Union.
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27. The aforesaid decision was subsequently explained by the
Hon'ble Supreme Court of India in Cement Corporation of India
(supra) by observing that in the absence of any provision in the
constitution of the Trade Union for automatic cessation of
membership as a result of cessation of employment, it cannot
be said held that an employee would cease to be a member of
the Trade Union upon his retirement.
28. In Chairman, SBI and another vs. All Orissa State Bank
Officers' Association and others reported at (2003) 11 SCC 607,
the issue that fell for consideration was whether a non-
recognized association has a right to espouse the case of
officers of the Bank with the management of the Bank or such
right was vested only upon the recognized association. The
Hon'ble Supreme Court in its judgment delivered on
06.05.2002 reported at (2002) 5 SCC 669 held that the
management cannot outrightly refuse to have any discussion
with a non-recognized union in matters relating to service
conditions of individual members and other matters incidental
thereto. However on a review petition filed against the
judgment dated 06.05.2002, the Hon'ble Supreme Court in
(2003) 11 SCC 607 allowed the review petition thereby
recalling the judgment dated 06.05.2002. The Hon'ble Supreme
Court after taking note of the grievance procedure circulars
held that the right of representation was not given to the
majority union also and, therefore, there was no discrimination.
The said decision is distinguishable on facts and, therefore, is
not applicable to the case on hand.
29. In UCO Bank Employees' Association & Anr. vs. UCO
Bank & Anr. reported at 2014 SCC OnLine Cal 5074, the
decision of the Bank to negotiate at the apex level on policy
matter with the majority union was challenged on the ground
that the same is unreasonable and against the spirit of the
Sastri Award. It was further contended that the object of
collective bargaining would be frustrated if the other unions are
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left out of the discussion. The said decision of the learned
Single Judge of this Court is distinguishable on facts and
therefore, is of no assistance to the Bank.
30. In the case of All India SBBJ Employees' Coordination
Committee vs. Union of India & Ors reported at 2015 SCC
OnLine Rajasthan 11826, the union issued the notice of strike
and nominated the elected representatives for discussions/
negotiations who were only serving employees of the Bank and
pursuant to the said notice of strike, the management of the
Bank invited such representatives to participate in the
discussions/negotiations before initiation of strike. The learned
Single Bench of the Rajasthan High Court by its Order dated
November 8, 2015 dismissed the writ petition filed by the
union. On an appeal being preferred therefrom, the Division
Bench of that Court in DB Civil Special Appeal (Writ) number
1057 of 2015 passed a judgment on 18.11.2015. The Hon'ble
Division Bench after taking note of the provisions laid down in
Section 3 read with Section 36 of the Industrial Disputes Act,
1947 and considering the purpose for such negotiations held
that the provisions of the Industrial Disputes Act and not the
Trade Unions Act will prevail.
31. The decision of the Rajasthan High Court is based on the
provisions laid down under the Industrial Disputes Act, 1947.
Section 3(1) of the said Act lays down the manner in which the
Works Committee in an industrial establishment is to be
established. It further provides that the representative of the
workmen shall be chosen in the prescribed manner from
amongst the workmen engaged in the establishment in
consultation with their Trade Union, if any, registered under the
1926 Act.
32. Section 36 of the 1947 Act provides for representation of
the parties. Sub-Section (1) thereof provides how a workman
who is a party to the dispute shall be entitled to be represented
in any proceeding under the 1947 Act. Sub-Section 2 thereof
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provides how an employer who is party to a dispute shall be
entitled to be represented in a proceeding under the 1947 Act.
The issue arising in the Rajasthan decision was with regard to
a notice for strike under the provisions of the 1947 Act.
33. In the case on hand the issue is how an association of
officers will be represented in the meetings/ discussions/
negotiations with the management of the Bank. The issue
involved in the Rajasthan decision is completely different from
the case on hand and therefore, the same do not have any
manner of application to the case on hand.
34. The Hon'ble Single Judge in the judgment and order
impugned herein held that in the event the Bank is required to
have meetings/ discussions/ negotiations henceforth with the
respondent no. 1 Federation, it must allow the respondent no.2
or any duly elected not serving in the Bank office-bearer of the
Union to participate in such negotiations/ meetings/
discussions. However, the Hon'ble Single Judge did not allow
the prayer of the writ petitioners/respondent no. 1 and 2 herein
for quashing the impugned resolution dated November 3rd,
2017 and the letters dated November 3rd , 2017 and November
24th, 2017 for which they have taken out the Cross-Objection
being COT no. 26 of 2019.
35. For all the reasons as aforesaid, this Court holds that the
management of the Bank had no authority and/or jurisdiction
to impose a restriction in the matter of representation by the
office-bearers of the Federation to the effect that only serving
officers who are duly elected office-bearers of the Majority
Officers' Association shall participate. Such restriction, in the
considered view of this Court, is an arbitrary exercise of power
by the management of the Bank and, therefore, the policy
decision and all consequential action taken pursuant thereto
are liable to be set aside and quashed.
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Such policy decision of the Bank infringes upon the right of the
members of the Federation to elect the office-bearers according
to their choice. Therefore, this Court is unable to accept the
contention of Mr. Choudhury that the writ petition was not
maintainable.
36. Accordingly, the decision taken in the meeting of the
Board of Directors held on 3rd November, 2017 to allow only
serving officers who are duly elected office-bearers of the
Majority Officers' Association in meetings/ discussions/
negotiations are hereby set aside and cancelled. All
consequential steps taken pursuant thereto including the letters
dated 3rd November, 2017 and 24th November, 2017 are also
set aside and quashed.
The Cross-Objection being COT no. 26 of 2019 stands allowed.
The Appeal being MAT 23 of 2019 stands dismissed without
any order as to cost. Connected applications, if any, also stand
disposed of accordingly.
Urgent photostat certified copies, if applied for, be supplied to
the parties upon compliance of all formalities."
7. The learned Senior Advocate Shri Talsania, along with the
learned Advocate Shri Deshpande, has strenuously opposed this
Petition by contending that the experience of the management in
allowing retired employees/elected office bearers to participate in the
GRC meetings with the management, is not happy. Earlier, an
attempt was made by permitting even retired employees to
participate in the meetings.
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8. It is further submitted that, a long time ago, the bank had
maintained the same policy of prohibiting retired employees from
participating in the grievances redressal meetings on the ground that
individual grievances have to be discussed at the regional levels and
all long term policies had to be discussed at the central level. To
simplify the process at the regional level, it was decided to permit
only three office bearers working in the region to participate in the
industrial relations meetings at the concerned region. Hence, the
central office bearers/office bearers working in other regions in the
meeting, were restrained from participating in such meetings, with
effect from 01.01.2010. This aspect was brought to the notice of the
Petitioner by the bank vide the communication dated 21.12.2009.
Shri Talsania has further canvassed that the bank, thereafter,
consistently maintained the said policy by permitting only
representatives who are in service of the bank, to attend such
meetings.
9. Mr. Bopshetty, the learned Advocate for the Union points
out a communication dated 10.10.2014, by which only those five
representatives of the All India Bank of Maharashtra Employees'
Federation Majority Award Staff Union, who are in active service of
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the bank, were permitted in the zonal level industrial relations
meetings. However, the management decided to allow only 'in-
service' representatives in such meetings, out of which one
representative would be from the bank level federation, one would be
the General Secretary or any of the union level office bearer of the
union affiliated to the federation and three would the representatives
from within the zone.
10. Shri Bopshetty further points out the circular issued by
the bank dated 24.11.2014, by which the policy of the bank was
amended and the bank decided to allow even those office bearers of
the majority worker union, who have retired, to participate in the I.R.
meetings and office zonal office meetings. The General Secretary of
the respective unit was given the liberty to decide the five
representatives to participate in the zonal level I.R. meetings.
However, by the impugned board resolution, dated 22.11.2019 and
by the employees grievances redressal policy dated 30.11.2019,
Clause 6(d) was introduced for disallowing those elected
representatives who are not in service of the bank, from participating
in the meetings of the grievance redressal committee.
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11. For clarity, it would be apposite to reproduce Clause-6 of
the policy, here under:-
6) GRIEVANCE REDRESSAL MEETING / INDUSTRIAL
RELATIONS MEETING WITH AWARD STAFF UNION
a) The periodicity is subject to number of issues to be
discussed in the meeting and shall be at the discretion of
the Zonal Head / Authority concerned.
b) Meeting shall be held maximum for one day.
c) Issues arising out of union rivalry shall not be discussed
in the meeting.
d) Meeting can be attended only by the representatives who
are in the service of the Bank.
e) Zonal Heads shall not allow the number of
representatives to exceed the permitted limit for any
reason whatsoever.
f) The issues pertaining to disciplinary matters & Vigilance
matters shall not be discussed in the meeting.
g) The issues pertaining to day-to-day
administration/managerial functions shall not be
discussed in the meeting.
h) No policy issues shall be discussed at Zonal Office level
with any registered trade union including the majority
union i.e. All India Bank of Maharashtra Employees'
Federation.
i) In the Industrial relations meeting, the issues pertaining
to business development shall also be discussed. Apart
from issues of Industrial grievance the business
development shall also be discussed in the meeting.
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j) The broader HR issues / operational issues & issues of
common interest of the employees only shall be discussed
in the meeting.
k) Minutes of the meeting shall be signed by both the parties
in respect of majority union. The minutes shall contain
the issues relating to grievances.
l) In case of meeting with other registered unions, brief gist
of the discussion shall be prepared. The gist shall contain
the issues relating to grievances.
m) Normally it is expected that the employee shall, in the
first instance take up his grievance with the Branch /
Dept. Head who shall take a decision or refer the matter
to Zonal Office. If the grievance is not redressed then the
Union representative may take up the grievance at Zonal
Office.
n) No zonal Head / Authority is permitted to grant any
benefit over and above the provisions of the Bipartite
settlement (BPS) & guidelines issued by IBA/ Govt., or
any other provisions or rules of the Bank. In case of any
doubt regarding interpretation of any provision /
guidelines etc., the Zonal head / Authority concerned
shall refer the matter to HRM Dept, H.O. Pune, in writing
for guidance / decision. While referring the issues to
HRM Dept complete facts should be informed.
o) Any demand of any union which is not as per provisions
of BPS shall not be considered at Zonal Office level and
need not be referred to HRM Dept for any reason.
p) With focus to use technology and to save time, transit and
cost, the representatives of federation/ central committee
should, as far as possible, attend meetings through video
conference facility.
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q) The periodicity, representation, nature of issues in the
meeting are detailed herein below.
r) Representatives attending the meeting are entitled to
TA/DA and duty leave as applicable.
s) The Zonal Office shall provide attendance certificate to
perticipating union representatives subject to above
condition.
t) The TA/DA claims have to be forwarded to Head Office
for sanction along with attendance certificate and
relevant tickets/documents.
u) The gist of the meeting should be sent to Head Office
within reasonable period."
ANALYSIS AND CONCLUSIONS
12. We deem it appropriate to refer to a circular dated
17.03.2010, issued by the bank to all the regional heads regarding
industrial relations meetings. The number of representatives to be
allowed in the meetings to be held at the region level, were
prescribed by the bank. The three office bearers/representatives
working in the region, were permitted to participate. For the other
award, staff unions (minority unions), two office
bearers/representatives working in the region, were permitted. The
Bank of Maharashtra Organization/majority officers union, was
permitted to be represented by three office bearers/representatives,
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who were working in the region. For the Bank of Maharashtra
Officers Association and other minority officers union, two office
bearers/representatives who were working in the region, were
permitted.
13. However, by the amendment circulated by the bank to all
the branches and officers dated 24.11.2014, even retired employees
were permitted to participate in the meetings of the grievance
redressal committee. A further circular was issued on 03.03.2015,
allowing office bearers of all trade unions, who have retired from the
bank, to participate in the I.R. meetings at the Head Office and the
Zonal office, on trial basis for six months. It was observed that if
there is a positive feedback and there is value addition in the
industrial relations, the policy may be continued for allowing retired
employees to participate in the said meetings.
14. We find from Clause 6(j) that broader H.R. issues/
operational issues and issues of common interest of the employees
only, would be discussed in the meeting of the grievance redressal
committee. By sub clause (d), only 'in-service' elected office bearers
were to be allowed to participate in the said meeting.
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15. The learned Senior Advocate Shri Talsania has
vehemently canvassed that a temporary deviation was made and the
management departed from the earlier policy of restraining retired
employees from participating in the meetings, vide the circular dated
24.11.2014. It was purely on experimental basis in order to assess as
to whether the meetings could be conducted smoothly or whether
there could be any impediment on account of the retired employees
having participated in such meetings. It was further canvassed that as
local issues and zonal issues with regard to industrial relations and
the problems of the workers were to be discussed in such grievance
redressal committee, there was no necessity to permit the retired
elected office bearers on zonal basis or national basis to participate in
such meetings.
16. He has further canvassed that the experience was not
found to be encouraging and there was no value addition by the
retired employees/representatives, who participated in the industrial
resolution meetings. To the contrary, it was found that retired
employees had no personal stakes involved and were rather adamant
and not flexible in their approach and caused a stalemate on several
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occasions. Hence, it was decided to withdraw the decision of
allowing retired employees to participate in the meetings of the
G.R.C. He relies upon the affidavit in reply as well as the additional
affidavit filed by the bank in support of this contention.
17. In Bajaj Auto Limited Vs. The State of Maharashtra and
others, the learned Single Judge concluded vide order dated
05.04.2011, passed in Writ Petition No.2596 of 2011, that those
workers who were earlier the employees of the company, can form a
union even after losing their employment. The said order was carried
before the Appeal Bench in Letters Patent Appeal No.78 of 2013
(Bajaj Auto Limited Vs. State of Maharashtra and others). The Appeal
Bench delivered an order on 31.01.2018, concluding that such union
of former employees, can be registered.
18. In All Escorts Employees Union Vs. State of Haryana and
others, the Hon'ble Supreme Court delivered a judgment on
14.09.2017 in Civil Appeal Nos.12843 - 12844 of 2017. It was held
in paragraph 22, as under:-
"22) From the definition of Trade Union contained in Section
2(h) of the Act, it becomes apparent that such a Union is
formed primarily for the purpose of regulating the relations
between workmen and employers (which is the instant case) or
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it can be between workmen and workmen or between
employers and employers. It includes any federation of two or
more Trade Unions also though we are not concerned with it.
When we keep in mind the aforesaid objective of formation of a
Trade Union, namely, regulating the relations between the
workmen and its employer, normally such a Union of workmen
would be of those workmen who work in a particular
Establishment. This gets further strengthened when we peruse
the definition of Trade Dispute contained in Section 2(g) of the
Act. The Trade Unions of workmen while regulating their
relations between the employers would normally have
negotiations representing its workmen before the employer and
in case those negotiations do not result in amicable settlement
or resolution of disputes, such Trade Unions would raise trade
dispute with its employer. Section 6 of the Act mandates a
Trade Union to have its Constitution/Bye-Laws/Rules by
incorporation of the provisions contained therein i.e. under
Section 6. Clause (e) deals with admission of ordinary
members and specifically provides that ordinary members
should be those persons who are actually engaged or employed
in an industry with which the Trade Union is connected. This
provision implicitly confines the membership to those who are
the workmen of the industry where they are employed."
19. Under Chapter II-B - Grievance Redressal Machinery,
provided under the Industrial Disputes Act, 1947, Section 9C was
introduced by the amendment dated 18.08.2010 with effect from
15.09.2010, which provided for setting up of grievance redressal
committee. Clause (1) provided that every industrial establishment
employing twenty or more workmen shall have one or more
Grievance Redressal Committee for the resolution of disputes arising
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out of individual grievances. Sub section (2) provided that the
Grievance Redressal Committee would consist of equal number of
members from the employer and the workmen. Sub section (3)
provided a selection of the Chairman of the Grievance Redressal
Committee from amongst the employer and the workmen, alternately
on rotation basis every year.
20. For clarity, Section 9C is reproduced as under:-
"9C. Setting up of Grievance Redressal Machinery.--(1) Every
industrial establishment employing twenty or more workmen
shall have one or more Grievance Redressal Committee for the
resolution of disputes arising out of individual grievances.
(2) The Grievance Redressal Committee shall consist of equal
number of members from the employer and the workmen.
(3) The chairperson of the Grievance Redressal Committee
shall be selected from the employer and from among the
workmen alternatively on rotation basis every year.
(4) The total number of members of the Grievance Redressal
Committee shall not exceed more than six:
Provided that there shall be, as far as practicable, one woman
member if the Grievance Redressal Committee has two
members and in case the number of members are more than
two, the number of women members may be increased
proportionately.
(5) Notwithstanding anything contained in this section, the
setting up of Grievance Redressal Committee shall not affect
the right of the workman to raise industrial dispute on the same
matter under the provisions of this Act.
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(6) The Grievance Redressal Committee may complete its
proceedings within thirty days on receipt of a written
application by or on behalf of the aggrieved party.
(7) The workman who is aggrieved of the decision of the
Grievance Redressal Committee may prefer an appeal to the
employer against the decision of Grievance Redressal
Committee and the employer shall, within one month from the
date of receipt of such appeal, dispose off the same and send a
copy of his decision to the workman concerned.
(8) Nothing contained in this section shall apply to the
workmen for whom there is an established Grievance Redressal
Mechanism in the establishment concerned.]"
21. It is, thus, clear that there is no embargo even under the
Industrial Disputes Act, as regards the representation of the workers
by their representatives in the G.R.C. There is no express exclusion of
a retired employee or a non employee of the concerned industry from
participating in the meetings of the G.R.C. Under Section 22 of the
M.R.T.U. & P.U.L.P. Act, 1971, the rights of unrecognized unions were
prescribed. Under the rules, officers, members of the office staff and
members of any union (other than a recognized union), were vested
with a right to meet and discuss with an employer or any person
appointed by him in that behalf, the grievances of any individual
member relating to his discharge, removal, retrenchment, termination
of service and suspension. They were also given the right to appear
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on behalf of any of it's members employed in the undertaking in any
domestic or departmental inquiry held by the employer.
22. It is beyond debate that a trade union is held to be
connected with an industry, only on fulfillment of the prescription
under the Trade Unions Act, 1926. Section 22 of the Trade Unions
Act, describes the proportion of office bearers, to be connected with
the industry. The said section reads as under:-
"22. Proportion of office-bearers to be connected with the
industry.--(1) Not less than one-half of the total number of the
office-bearers of every registered Trade Union in an
unrecognised sector shall be persons actually engaged or
employed in an industry with which the Trade Union is
connected:
Provided that the appropriate Government may, by special or
general order, declare that the provisions of this section shall
not apply to any Trade Union or class of Trade Unions specified
in the order.
Explanation.--For the purposes of this section, "unorganised
sector" means any sector which the appropriate Government
may, by notification in the Official Gazette, specify.
(2) Save as otherwise provided in sub-section (1), all office-
bearers of a registered Trade Union, except not more than one-
third of the total number of the office-bearers or five,
whichever is less, shall be persons actually engaged or
employed in the establishment or industry with which the
Trade Union is connected.
Explanation.--For the purposes of this sub-section, an employee
who has retired or has been retrenched shall not be construed as
outsider for the purpose of holding an office in a Trade Union.
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(3) No member of the Council of Ministers or a person holding
an office of profit (not being an engagement or employment in
an establishment or industry with which the Trade Union is
connected), in the Union or a State, shall be a member of the
executive or other office-bearer of a registered Trade Union.] "
23. The explanation below Sub section 2 to Section 22,
clearly purports a meaning that an employee who has retired or has
been retrenched, shall not be construed as an outsider for the purpose
of holding an office in a trade union. With this legal position, a
retired employee cannot be treated as an outsider by any employer or
in an industry, as long as the union is legally connected to the
industry.
24. In the case of L. Balasubhramaniam and Anr. Vs. Indian
Overseas Bank and Ors (Madras High Court Writ Appeal No.2137 of
2013 dated 09.01.2014), it was concluded that when a retired
employee is not treated as an outsider, he has every right to be
elected as an office bearer of a union, even after his superannuation
and will have a right to participate in the negotiations and meetings
of the trade union with the management, considering the employer-
employee relationship between the management and the workmen
who are represented by his trade union.
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25. In Bokajar Cement Corporation Employees' Union Vs.
Cement Corporation of India Limited, (2004) 1 SCC 142, the Hon'ble
Supreme Court explained the judgment delivered in State Bank of
India Staff Association (supra) and concluded that unless Trade
Unions Act does not prohibit a retired or a former employee, with a
provision for an automatic cessation of the union membership of a
retired employee, he does not cease to be the member of the union
and continuous with his membership.
26. In the Chairman, State Bank of India and another Vs. All
Orissa State Bank Officers Association, (2003)11 SCC 607, the
Hon'ble Supreme Court considered the rights of a non recognized
union/association (a registered union/association), vis-a-vis a right to
espouse the cause of its members with the management of the bank.
It was concluded that the management cannot out-rightly refuse to
have any discussion with an elected office bearer of a non recognized
union in relation to the service conditions of the individual members
represented by it. This is supported by Section 22 of the MRTU &
PULP Act, 1971, which gives rights to the elected office bearer to even
represent an employee in a domestic or departmental enquiry, which
is a personal issue with regard to such an employee.
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27. Section 36 of the Industrial Disputes Act, 1947 reads as
under:-
"36. Representation of parties.--(1) A workman who is a party
to a dispute shall be entitled to be represented in any
proceeding under this Act by--
(a) [any member of the executive or office bearer] of a
registered trade union of which he is a member:
(b) [any member of the executive or other office bearer] of a
federation of trade unions to which the trade union referred to
in clause (a) is affiliated;
(c) where the worker is not a member of any trade union, by
[any member of the executive or other office bearer] of any
trade union connected with, or by any other workman
employed in, the industry in which the worker is employed and
authorised in such manner as may be prescribed.
(2) An employer who is a party to a dispute shall be entitled to
be represented in any proceeding under this Act by--
(a) an officer of an association of employers of which he is a
member;
(b) an officer of a federation of association of employers to
which the association referred to in clause (a) is affiliated;
(c) where the employer is not a member of any association of
employers, by an officer of any association of employers
connected with, or by any other employer engaged in, the
industry in which the employer is engaged and authorised in
such manner as may be prescribed.
(3) No party to a dispute shall be entitled to be represented by
a legal practitioner in any conciliation proceedings under this
Act or in any proceedings before a Court.
(4) In any proceeding [before a Labour Court, Tribunal or
National Tribunal], a party to a dispute may be represented by
a legal practitioner with the consent of the other parties to the
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proceedings and [with the leave of the Labour Court, Tribunal
or National Tribunal, as the case may be]."
28. It is, thus, clear that a workman who is a party to a
dispute would be entitled to be represented in any proceeding, by (a)
any member of the executive or other office bearer of a registered
trade union of which he is a member or (b) through any such
representative of a federation to which his union is affiliated to or (c)
even any workman who may not be a member of any trade union, (d)
by any member of the executive or other office bearer of a trade
union connected with the industry or (e) by any other workman
employed in the industry in which the worker is employed, if
authorized in such manner as may be prescribed.
29. In All India UCO Bank (supra), the Division Bench of the
Calcutta High Court came to a conclusion that the management of the
bank had no authority or jurisdiction to impose a restriction in the
matter of representation by the office bearer or the federation, in a
manner that only a serving officer/employee duly elected as an office
bearer of the majority union/association, would be permitted. Such
restriction imposed by the bank was held to be unsustainable as an
arbitrary exercise of the power by the management. It was also held
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that such a restriction would impinged upon the rights of the
members of the union or federation. Consequently, the decision taken
in the meeting of the board of directors to allow only serving officer
bearers could represent the employees, was quashed and set aside.
This judgment of the Calcutta High Court was carried in Special
Leave to Appeal (Civil) No.2733 of 2023 (UCO Bank and others Vs.
All India UCO Bank Officers Federation and others) . By order dated
27.03.2023, the SLP was dismissed.
30. We are of the view, in the light of the judicial
pronouncements referred to herein above, and in the absence of any
provision in the constitution of the Trade Union for automatic
cessation of membership of the union as a result of cessation of
employment, that an elected member would not be an outsider after
being elected to a post which is provided under the constitution of the
union. If the law provides representation by an elected office bearer
of the union, subject to legal restrictions as may be provided in law,
the Employer cannot introduce a restriction so as to create an
embargo on the freedom to represent a member, which would
certainly be an arbitrary act. If such restriction is unreasonable,
irrational, unjustly curbs the freedom of an elected office bearer and
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does not stand the test of judicial scrutiny, such restriction deserves
to be struck down in judicial review for being arbitrary.
31. In view of the above, this Writ Petition is allowed. The
decision of the Respondent bank dated 22.11.2019, to the extent of
introducing Clause 6(d) in the Employees Grievances Redressal Policy
dated 30.11.2019, is quashed and clause 6(d) stands struck down. As
such, any further policies or circulars issued by the bank on the basis
of the said clause, would be rendered inoperable.
32. Rule is made absolute in the above terms.
33. No order as to costs.
[ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]
SMS
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