Calcutta High Court (Appellete Side)
Cesc Power Sthyaee Karmachari ... vs The State Of West Bengal & Ors on 4 October, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
W.P.A. 14851 of 2021
CESC Power Sthyaee Karmachari Sangh
Vs.
The State of West Bengal & Ors.
For the Petitioner: Mr. Jayanta Dasgupta, Adv.
Ms. Senjit Sengupta, Adv.
Mr. Ritesh Maity, Adv,
Mr. R. Guha Thakurata, Adv.,
For the Respondent No. 8: Mr. Jaydip Kar, Sr. Adv.,
Mr. Debdeep Singh,
For the Respondent No. 4: Mr. Partha Sarathi Sengupta, Sr. Adv.,
Mr. Soumya Majumder, Adv.,
For the Respondent Nos. 5 and 6: Mr. Dwaipan Sengupta, Adv.,
For the Respondent No. 7: Mr. Samim Ahammed, Adv.,
Mr. Arka Maity, Adv.,
Ms. Gulsanwara Pervin, Adv.,
For the State: Mr. Ansar Mondal, Adv.,
Hearing concluded on: 30.09.2021
Date: 04.10.2021
SUVRA GHOSH, J. :-
1. The petitioner is a Trade Union registered under the Trade Union's Act,
1926. The contention of the petitioner is that the fourth respondent which
is the CESC Limited is a big company having several departments
including factory and non factory establishments. The fourth respondent,
in its notice dated 01-04-2021, has declared the generating stations,
garage, workshop and testing departments as factory establishments and
provisions of chapter - III - A of the Trade Unions Act, 1926 is applicable to
these departments only. Placing reliance upon section 2 (ka) and 25A of the
Industrial Disputes Act, 1947 which define "industrial establishments",
learned counsel for the petitioner has submitted that only factory
establishments fall under such definition and other establishments do not
come under the definition of factory under section 2(m) of the Factories
Act, 1948. The petitioner has alleged that respondent no. 2 who is the
Registrar of Trade Unions issued notice to other functioning Trade Union in
Form - J intimating the application filed by respondent no. 8 for
recognition as a recognised Trade Union in M/s. CESC Limited. Notice of
election in Form - N was issued on 01-09-2021 upon all the Trade Unions
for determination of the question of recognition. Learned counsel for the
petitioner has drawn the attention of the court to the draft electoral rolls
and has submitted that out of 6418 voters in the rolls, only 1059 are
employed in the departments classified as "industrial establishments" and
the other workmen are employed in non industrial establishments.
Challenging the notice of election, learned counsel submits that the notice
is in contravention to chapter - IIIA of the Act of 1926 as it includes
workmen who are employed in non industrial establishments of the
company. The petitioner filed an objection before the authority on 09-08-
2021 and without disposing of the said application, draft electoral rolls has
been published on 01-09-2021. The election is due to be held on 05-10-
2021.
2. The prayer of the petitioner is two fold - (I) Prohibiting conduct of election
for recognition of registered Trade Union including departments which do
not fall within the ambit of industrial establishments under chapter - IIIA
of the 1926 Act, and (II) Prohibiting conduct of elections during this
pandemic times.
3. Vehemently opposing the prayer of the petitioner, learned counsel
representing respondent no. 8 has submitted that CESC Limited comprises
several departments under a single employer. The election is necessary to
establish the majority of this respondent and there is no dispute with
regard to the fact that CESC Limited is one single unit. The ownership,
management, control, finance, etc., are integral parts of the company.
Learned advocate has placed reliance on the judgment in Associated
Cement Companies Limited, Chaibassa Cement Works, Jhinkpani v/s
Workmen reported in (1960) 1 SCR 703 which deals with specific tests for
determining the term "One Establishment". The Hon'ble Supreme Court, in
the said judgment, has observed that the test to determine whether an
industrial undertaking having branches, departments and units in
different locations comprises a single establishment is the true relation
between the branches, units etc.. When one unit is a feeder of another and
there is unity of ownership, management, supervision, control, condition of
service and the like, all the units come under the umbrella of one
establishment. According to learned advocate, CESC Limited is
undoubtedly an industrial establishment and there is no irregularity or
illegality in the election notice issued by the second respondent. The
second limb of argument canvassed by learned counsel for respondent no.
8 is that it is a fact that the entire world has been undergoing an
extraordinary situation due to the pandemic. Nevertheless, normalcy is
being resumed gradually in all walks of life including holding of elections,
reopening of establishments, markets, transport and the like. So there is
no reason for postponing the election on this score. The election may be
conducted upon compliance with all covid protocol strictly.
4. Respondent nos. 5 & 6 have adopted the submission made on behalf of
respondent no. 8.
5. Referring to section 28A of the Trade Union's Act, 1926 and speaking in
support of the submission made on behalf of respondent no. 8, learned
advocate for respondent no. 4 has submitted that in the application filed by
the petitioner in Form - I before the company for recognition of a registered
Trade Union, the petitioner has accepted the CESC Limited to be an
industrial establishment. After their registration on 10-11-2014, the
petitioner has participated in three elections wherein it was unsuccessful.
Learned advocate has taken the court to section 25A and 25L of the
Industrial Disputes Act, 1947 wherein the term "industrial establishments'
has been defined. It has been emphasised by the company that the
company is only interested in a fair election in order to identify the sole
bargaining agent/unit who is to be approached for all matters/settlements
pertaining to the employees of the company. It is further submitted that
the office of the company is the face of the CESC Limited which deals with
several important matters concerning the company and the public at large.
An order dated 15-07-2002 passed by a coordinate bench of this court in
W.P. No. 1881 of 2001 demonstrates that the election process commenced
on the basis of such order which was passed on the prayer of respondent
no. 8. It is pointed out that a similar petition was filed by the petitioner
before this court for stalling the previous election but the said petition
became infructuous due to efflux of time. Learned advocate has placed
reliance on the judgment in S.G. Chemicals And Dyes Trading Employees'
Union v/s. S.G. Chemicals and Dyes Trading Limited And Another reported
in (1986) 2 Supreme Court Cases 624.
6. The State respondent has submitted written instruction and states that
there is no embargo on behalf of the State against holding of the election.
7. In reply, learned advocate for the writ petitioner has emphasised on the
issue regarding the question of jurisdiction. According to learned advocate,
the earlier elections were held contrary to the statute. Referring to section
25A of the Act of 1947, learned advocate has submitted that the said
provision deals with lay off and retrenchment of employees. Learned
advocate pleads violation of natural justice. Reliance is placed on the
decision of an Hon'ble Division Bench of this court in International
Karmachari Union vs. Hotel Hindusthan International & Ors. in APO. No.
454 of 2006; W.P. No. 2265 of 2005 and Hotel Hindusthan International
Karmachari Union v/s. Hotel Hindusthan International Employees and
Workers' Union & Ors in APO No. 469 of 2006; W.P. No. 2250 of 2005.
8. I have considered the submissions made on behalf of the parties and also
the documents on record.
9. Section 28A of the Act of 1926 is reproduced :-
"28-A. Application for recognition.- (1) Subject to
the provisions of sub-section (2), any registered
Trade Union may apply in the prescribed manner
together with such fee as may be prescribed to the
Registrar for recognition as a recognised Trade
Union for an industrial establishment or a class of
industry in a local area, as the case may be:"
10. The provision relates to an industrial establishment or a class of industry.
The crux of the dispute between the parties is whether CESC Limited is an
industrial establishment and also whether all the departments under the
establishment can be termed as factory establishments.
11. Section 2 (ka) of the 1947 Act defines "industrial establishments or
undertaking" as an establishment or undertaking in which any industry is
carried on. Clause (b) of the said provision envisages that "if the pre
dominant activity or each of the pre dominant activities carried on in such
establishment or undertaking or any unit thereof is an industry and the
other activity or each of the other activities carried on in such
establishment or undertaking or unit thereof is not severable from and is,
for the purpose of carrying on, or aiding the carrying on of, such
predominant activity or activities, the entire establishment or undertaking
or, as the case may be, unit thereof shall be deemed to be an industrial
establishment or undertaking."
12. Section 25A and 25L of the 1947 Act defines "industrial establishment" as
a factory, mine and plantation for the purpose of the chapters dealing with
lay-off and retrenchment of workmen and closure in certain
establishments.
13. It is not in dispute that the company (CESC Limited) is a single unit so far
as ownership, management and control are concerned. The various
departments situated at different places are integral parts of the company
and can be termed as a single establishment. Page- 22 of the writ petition
which is a notice issued by the company on 01-04-2021 indicates that (i)
generating stations, (ii) garage and workshop and (iii) testing departments,
shall be treated as factories for the purpose of determining overtime
benefits of the employees.
14. In its application before the company in Form - I for recognition of a
registered Trade Union, the petitioner has accepted the company to be an
industrial establishment. The company is also recognised as an industrial
establishment in the notice issued in Form - J. The draft electoral roll was
published on 01-09-2021 inviting claims and objections, if any, against
the same. But no objection was raised by the petitioner before the
Returning Officer. The petitioner, by a letter dated 09-08-2021 sought the
view of the second respondent with regard to application of chapter - IIIA
of the Act to office establishments. The said letter has not been replied to
by the second respondent.
15. The petitioner seeks to divide the company into two establishments -
industrial and non industrial. That the company as a whole is an
industrial establishment has not been disputed by the petitioner. The
petitioner's case is that the workmen who form the majority and are
represented by other Trade Unions are employed in non industrial
establishments and only a meagre number of workmen are employed in
industrial establishments under the company. Further, the workmen
employed in industrial establishments are only entitled to recognition of
their Trade Union under section 28A of the Act of 1926.
16. The company undoubtedly being an establishment in which an industry
is carried on, can be termed as an industrial establishment as defined
under section 2 (ka) of the Act of 1947. True, some of the establishments
of the company have been treated as factories in the notice of the
company dated 01-04-2021. The question which falls for consideration is
whether the establishments termed as factories are separable from the
non factory establishments under the company. It is not in dispute that
though various departments of the company are located at different
places in Kolkata, all the departments are interdependent and
inseverable. Therefore if some of the departments are held to be industrial
establishments and are not severable from the other departments for the
purpose of carrying on the predominant activities of the establishment as
a whole, the entire establishment shall be deemed to be an industrial
establishment.
17. This proposition of law has been dealt with by the Hon'ble Supreme Court
in the judgment in S.G. Chemicals (supra). The judgment establishes the
proposition that when the functions of several establishments of a
company are neither separate nor independent but are so integrally
connected that one unit cannot function without the other, all such
establishments constitute one single unit. The judgment in Associated
Cement Companies (supra) also speaks about the test for determining
what is "one establishment". In the said judgment, the Hon'ble Supreme
Court has observed that when there is a unity of ownership, management,
supervision, control, finance, employment, labour, condition of service of
workmen, etc., in the departments, all the departments form one single
establishment.
18. In the case in hand, the factory and non factory departments under the
company are interlinked and inseverable and jointly contribute in running
the industry as a whole. No unit is severable from the other unit of the
establishment. The company being an industrial establishment as a whole
as discussed earlier, the departments comprising the company cannot be
distinguished as factory and non factory for the purpose of section 28A of
the Act of 1926. The said provision deals with recognition of a Trade
Union for an industrial establishment. There is no further classification in
the said provision with regard to factory and non factory departments
under the industrial establishment. The petitioner having applied before
the company under section 28A of the Act of 1926 has thereby recognised
the company as an industrial establishment.
19. The petitioner participated in the earlier elections, at least 3 in number,
without a demur. Despite receipt of notice regarding publication of draft
electoral roll wherein claims and objections, if any, were invited, the
petitioner, instead of ventilating its grievance before the authority, filed
the present writ petition.
20. The ratio of the judgment relied upon by the petitioner can be
distinguished from the fact situation of the present case. The said
judgment deals with the question whether hotel is an industrial
establishment. A hotel establishment not being at par with the CESC
Limited, the judgment is not applicable herein.
21. The petitioner has also prayed for an order prohibiting the conduct of
election on the ground of pandemic.
22. It is a fact that the entire world has been going through difficult situations
owing to the pandemic which has disrupted normal life. However
normalcy is being resumed slowly and steadily with regard to all activities
and the nation is making an endeavour to gradually adapt to the new
normals. With the opening of the establishments, markets, etc., holding of
elections and resumption of other public activities, there is no reason to
forbid the election for recognition of the Trade Union scheduled to be held
on 05-10-2021 subject to strict compliance of all covid protocols.
23. In view of the above observations, the prayers of the petitioner cannot be
acceded to.
24. Accordingly, the writ petition being W.P.A. 14851 of 2021 is dismissed.
25. There shall however be no order as to costs.
26. Before parting it is necessary to state even at the cost of reiteration that
the concerned authority shall conduct the election on 05-10-2021 upon
strict compliance of all covid protocols.
27. Urgent certified website copies of this judgment, if applied for, be supplied
to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)
