Uco Bank vs All India Uco Bank Officers ...
2022 Latest Caselaw 8660 Cal

          IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE
Before:
The Hon'ble Justice T.S. Sivagnanam
           and
The Hon'ble Justice Hiranmay Bhattacharyya


                            MAT 83 of 2019
                          (WPA 29480 of 2017)
            IA No.: CAN 1 of 2019 (Old No. CAN 728 of 2019)

                               UCO Bank
                                   vs.
              All India UCO Bank Officers Federation & ors.

                                  with
                             COT 26 of 2019
              All India UCO Bank Officers Federation & ors.
                                  Vs.
                            UCO Bank & ors.



Appearance:
For the appellant          : Mr. Sabyasachi Choudhury, Adv.
                             Mr. Rajarshi Dutta , Adv.
                             Mr. Sourjya Roy, Adv.

For the respondents        : Mr. Joydeep Kar, learned Senior Advocate.
                             Mr. Soumya Mazumdar, Adv.
                             Mr. Subhrangsu Ganguly, Adv.

Judgment reserved on       : 15.11.2022

Judgment Delivered on      : 23.12.2022
 Hiranmay Bhattacharyya, J.:

  1. This appeal is at the instance of UCO Bank and is directed

    against judgment and order dated December 17, 2018 passed

    by Learned Single Judge in WPA 29480 of 2017 whereby the

    Bank was directed to allow writ petitioner/respondent no. 2 or

    any duly elected as office-bearer of the Union but not serving

    in the Bank to participate in the negotiations.

  2. All India UCO Bank Officers' Federation (for short "the

    Federation") and its General Secretary being the respondent

    nos. 1 and 2 in this appeal have preferred a cross-objection

    being COT 26 of 2019 and have prayed for striking down the

    impugned policy of the Bank dated November 3, 2017 and for

    quashing the letter dated 3rd November, 2017 and 24th

    November, 2017.

  3. Facts

giving rise to the instant appeal are summarized

hereunder as follows:

The Federation herein claims to be a registered Trade Union of

which the writ petitioner no. 2/respondent no. 2 is its General

Secretary. The respondent no. 2 retired from service of the

Bank with effect from December 1, 2003 but, in terms of the

Constitution of the Federation he is eligible to contest the

election of the office-bearers of the Federation and to carry on

its functions and discharge his duties for the post for which he

was elected. The Bank in the meeting of the Board of Directors

held on November 3, 2017 took a decision to allow only serving

officers who are duly elected office-bearers of the Majority

Officers' Association in the meetings/discussions/negotiations

with the management of the Bank. Subsequently,Bank by a

letter dated November 24, 2017 informed the Federation about

the aforesaid policy decision. Since, the aforesaid decision of

the Bank restricted the right of the retired officers who are also

the office-bearers of the Majority Officers' Association to

participate in the meetings/ discussions/ negotiations with

the management of the Bank, the respondent nos. 1 and 2

herein filed WPA 29480 of 2017 seeking a writ of mandamus

commanding the Bank to set aside and quash the resolution

dated November 3, 2017 and the letters dated November 3 rd,

2017 and November 24th, 2017.

4. Mr. Choudhury, learned Senior Counsel representing the

Bank contended that a Trade Union neither has a common law

right nor a statutory right to negotiate. He further submitted

that since the Bank has given the right of negotiation in terms

of its industrial policy, the same cannot be made the subject

matter of a judicial review under Article 226 of the

Constitution of India. He further submits that the Trade

Unions Act, 1926 (for short "1926 Act") deals with the

formation and function of a Trade Union and regulates

internal affairs by such registration. The said Act does not

confer any power of negotiation or bargaining with third

parties in any manner. He further contended that the 1926

Act does not provide that a member of a Trade Union shall

have a right to negotiate with the management or that the

management would be under an obligation to negotiate with

an office bearer of the union. He further contended that a

retired employee cannot claim a right to negotiate with the

management even if he happens to be the office bearer of the

union. In support of such submission, Mr. Choudhury places

reliance upon a decision of the Hon'ble Supreme Court of India

in the case of State Bank of India Staff Association vs.

State Bank of India reported in (1996) 4 SCC 378. He also

referred to a decision of a learned Single Judge of this Court in

the case of UCO Bank Employees' Association and Anr. vs.

UCO Bank and Anr. reported at (2014) SCC Online Cal

5074.

5. By placing reliance upon a decision of the High Court at

Rajasthan, Jodhpur in the case of All India SBBJ

Employees' Coordination Committee vs. Union of India &

Ors reported at 2015 SCC OnLine Raj 11826, Mr.

Choudhury learned Senior Counsel, argued that amendment

to Section 22 of the 1926 Act does not confer any right on the

retired employee, office bearer of the Union to participate in

the negotiations with the management. He further contended

that concept of collective bargaining emanates from the

Industrial Disputes Act, 1947 (for short "the 1947 Act") and

since there is no corresponding amendment, in the said Act, a

retired employee office bearer cannot claim any right to

participate in the negotiations with management. He further

submits that the aforesaid decision of the Single Bench of

"Rajasthan High Court was affirmed by the Division Bench in

D.B. Civil Special Appeal (Writ no. 1057/2015) delivered on

18.11.2015. He, thus, submitted that the impugned order be

set aside and the writ petition be dismissed.

6. Mr. Kar, learned Senior Counsel assisted by Mr. Majumder,

learned Counsel submitted that the right to form Trade Union

is a fundamental right under Article 19(1) (c) of the

Constitution of India. By referring to the definition of "Trade

Union" in Section 2(g) of the 1926 Act, Mr. Kar contended that

negotiation has been recognized as the right of the Trade

Union through such statute. He further submitted that once a

Trade Union is registered in accordance with the 1926 Act,

management of the Bank cannot put any fetter on the right of

the Trade Union and its members to participate in

negotiations with the management. He further submitted that

the impugned policy of the Bank interferes with the

Constitution of the Trade Union by way of unreasonable

encroachment on the democratic and fundamental rights of

members of the Trade Union to elect their office-bearers. He

submitted that Section 22 (2) of the 1926 Act, provides for the

proportion of existing employees to be the office-bearers.

According to Mr. Kar, if the provisions of the 1926 Act, with

regard to electing the office-bearers is complied with, the

management of the Bank cannot impose upon the Trade

Union a condition for negotiations which will have the effect of

forcing the members to elect only serving employees as office-

bearers. By referring to a decision of the Hon'ble Supreme

Court in the case of (2004) 1 SCC 142 in the case of

Bokajar Cement Corporation Employees' Union vs. Cement

Corporation of India limited, Mr. Kar submitted the Hon'ble

Supreme Court in that decision explained the case of State

Bank of India Staff Association vs. State Bank of India

reported at 1996 (4) SCC 378. Mr. Kar further referred to a

decision of the Hon'ble Madras High Court in the case of L.

Balasubhramaniam & Anr. vs. Indian Overseas Bank &

Ors. (Writ Appeal No. 2137 of 2013 dated 09.01.2014)

and contended that honorary members acting as office-bearers

of the union even after their superannuation can represent the

majority union and are entitled to participate in the

negotiations and discussion with the management of the Bank

pertaining to employer-employee relationship. Mr. Kar thus,

concluded by submitting that the impugned policy of the Bank

should be struck down and the Cross-Objection be allowed.

7. Heard the learned Advocates for the parties and perused the

materials placed.

8. Human Resource Management Department of the UCO Bank

framed the management relationship policy for the officers

which was approved by the Board of Directors in its meeting

held on 26.02.2013. The said policy provides for negotiations.

Clause 2.2 of such policy states that negotiations would mean

decision on policy matters at the Apex level only with

registered and recognized Officers' Association having

majority. It was also provided therein that negotiation status

on policy matters are to be accorded only to the All India

Majority Organization of Officers at the Apex level. The policy

further provides that in negotiations on policy matters, the

association shall be represented from office-bearers from

Association of Officers namely President, General Secretary

and other Office-bearers subject to the maximum of five.

However, in the Grievance Redressal Meeting at the Apex level,

the Association shall be represented by office-bearers from

Association of Officers namely President, General Secretary

and other Office-bearers subject to the maximum of three.

9. The Bank thereafter reviewed the practice of allowing retired

officers who are duly elected office-bearers of the Majority

Officers' Association in various meetings/ discussions/

negotiations with management of the Bank and a proposal

modifying the earlier guidelines was placed before the Board of

Directors in its meeting 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. Such proposal was duly approved by the Board

of Directors. The authorities of the UCO Bank by a letter

dated 3rd November, 2017 informed the respondent no. 1

Federation that henceforth only serving officers who are duly

elected office-bearers of the Federation shall be allowed to

participate in various meetings/ discussions/ negotiations

with management of the Bank. The authorities of the UCO

Bank by a subsequent letter dated November 24 th, 2017

informed the Federation that such decision was taken by

taking into consideration the fact that the association shall be

best represented by serving officers only.

10. This decision of the management of the Bank to allow

only serving officers who are duly elected office-bearers of the

majority officer association to participate in the

meetings/discussions/negotiations with the management have

given rise to the writ petition from which the instant appeal

arises.

11. It is no doubt true that the negotiation status on policy

matters was accorded by the Bank to All India Majority

Organization of Officers at the Apex level. The bone of

contention in this appeal is whether the management of the

Bank as a part of their policy decision can curtail the right of

the members of the association by imposing a restriction

thereby denying the right of the office-bearers who are not

serving employees to attend in the negotiations with the

management of Bank.}

12. Therefore, the issue that falls for consideration in this

appeal is whether office-bearers of the Federation upon his

retirement from service can be debarred by the management to

participate in the negotiations with the management of the

Bank.

13. All citizens have the right to form associations or unions

as guaranteed under Article 19(1) (c) of the Constitution of

India. The 1926 Act was enacted to provide for the registration

of Trade Unions and in certain respects to define the law

relating to registered Trade Unions.

14. Clause (a) of Section 2 of the said Act defines "executive"

to mean the body to which the management of the affairs of a

Trade Union is entrusted;

Clause (b) of Section 2 defines the term "office-bearer" in the

case of a Trade Union to include any member of the executive

thereof but does not include any auditor;

Section 2(a) read with Section 2 (b) of the 1926 Act implies

that the management of the affairs of a Trade Union is

entrusted upon its office-bearers.

15. Section 2(g) defines "Trade Dispute" to mean any dispute

between employers and workmen or between workmen and

workmen, or between employers and employers which is

connected with the employment or non-employment or the

terms of employment or the conditions of labour, on any

person, and "workmen" means all persons employed in trade

or industry whether or not in the employment of the employer

with whom the trade dispute arises.

Section 2(h) defines "Trade Union" to mean any combination,

whether temporary or permanent, formed primarily for the

purpose of regulating the relations between workmen and

employers or between workmen and workmen, or between

employers and employers or for imposing restrictive conditions

on the conduct of any trade or business and includes any

federation of two or more Trade Unions.

Therefore, trade dispute is a dispute which is connected with

the employment or non-employment or the terms of

employment or the conditions of labour of any person.

16. The object behind the formation of Trade Union as would

be evident from Section 2(h) is for the purpose of regulating

the relations between workmen and employers or between

workmen and workmen or between employers and employers

or for imposing restrictive conditions on the conduct of any

trade or business.

17. Section 6 of the said Act lays down the provisions to be

contained in the rules of a Trade Union. Clause (e) thereof

states about the admission of ordinary members who shall be

persons actually engaged or employed in an industry with

which the Trade Union is connected and also the admission of

the number of honorary or temporary members as the office-

bearers as required under Section 22 to form the executive of

the Trade Union. Therefore, Section 6 (e) provides for

admission of ordinary members who are serving employees

only as well as honorary and temporary members as office-

bearers.

18. Section 22 of the said Act lays down the proportion of

office-bearers to be connected with the industry. Sub-Section

2 of Section 22 reads as under:

"(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."

Therefore, Section 22 (2) read with the explanation does not

prohibit a retired employee from holding an office in a Trade

Union provided the proportion of office-bearers as laid down in

Section 22(2) is not violated.

Section 21A of the 1926 Act provides the grounds of

disqualification of office-bearers of Trade Unions.

19. The respondent no. 1 is registered under the 1926 Act.

Rule 3 of the Constitution of Association of Officers of UCO

Bank, West Bengal provides for two types of membership -

1. Ordinary and ;

2. Life.

Rules 4A, 4A(1) and 4 (B) of the Constitution provides for

admission of ordinary & life members which are extracted

herein:

"Rule 4.A: ORDINARY MEMBERSHIP

Any officer working in West Bengal & Sikkim, and officer

on probation and officer posted in any branch/office in

India of UCO Bank, who is not a member of any other

Association/Organisation duly registered with the

Registrar of Trade Unions under the Trade Unions Act and

has attained the age of 18 (Eighteen) years, shall be

eligible for admission as an Ordinary Member of the

Association provided he/she abides by the rules/bye-laws

and regulations of the Association that exist and/or may be

made by the Association from time to time.

RULE - 4.A (1): After his/her retirement from Bank's

service, he/she will cease to be the ordinary member of

the Association as a general rule. However, in case the

ordinary member happened to be an Office Bearer of the

Association while he/she is retiring from Bank's service, in

the interest of the organization, as a very special case, the

Central Executive Committee, by virtue of power conferred

by this Rule, may allow such Ordinary Member(s) to

continue as Office-Bearer(s) of the Association in the same

position as is/was held by him/her prior to his/her

retirement from Bank's service till next Triennial

Conference and he would continue to pay monthly

subscription at the rate as applicable to an Ordinary

Member and enjoy all rights and privileges of an Ordinary

Member.

RULE - 4.B: LIFE MEMBERSHIP : In the interest of the

organization, the Central Executive Committee, subject to

ratification by the Delegate Conference, may suo moto

offer admission to retiring officers having background of

trade union and social activities as Life Members of the

Association to be effective from the date of their retirement,

provided however that the Association makes such offer to

them in writing and obtains their acceptance thereto at

least 15(Fifteen) days before their date of superannuation.

Such Life Members shall also agree to abide by rules/ bye

laws/ regulations of the Association.

The Central Executive Committee, by virtue of power

conferred by this Rule, may allow such Life Members to

continue as Office-Bearer(s) of the Association in the same

position as is/was held by them prior to their retirement

from Bank's service till next Triennial Conference.

The Central Executive Committee, by virtue of power

conferred by this Rules as well as the provision of Rule -

12, may nominate such life-members as Delegates to the

Delegate Conference of the Association.

Such Life Members when nominated as Delegates to the

Delegate Conference are eligible to elect and to be elected

as Office-Bearers / Members of the Central Executive

Committee of the Association.

The rights and benefits of a Life Member(s) shall be the

same as that of an Ordinary Member of the Association."

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

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

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.

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 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 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.

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.

I agree.

(T.S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.)

(P.A. Saurav)