Delhi High Court
All India Railway Employees ... vs The Chairman, Railway Board & Ors on 10 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th March, 2017
+ W.P.(C) No.8212/2007
ALL INDIA RAILWAY EMPLOYEES
CONFEDERATION ..... Petitioner
Through: Dr. Pradeep Asthana & Mr. T.D.
Singh, Advs.
Versus
THE CHAIRMAN, RAILWAY BOARD & ORS ..... Respondents
Through: Mr. R.V. Sinha & Mr. R.N. Singh,
Advs. for R-1&2.
AND
+ W.P.(C) No.2203/2013
ALL INDIA RAILWAY EMPLOYEES
CONFEDERATION ..... Petitioner
Through: Dr. Pradeep Asthana & Mr. T.D.
Singh, Advs.
Versus
THE CHAIRMAN, RAILWAY BOARD ..... Respondent
Through: Mr. R.V. Sinha & Mr. R.N. Singh,
Advs. for R-1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The questions for adjudication in both the petitions (as confined to
during the hearing on 17th February, 2016 and as recorded in order of that
day) are (I) whether Clause 2(a) of the "Modalities for conducting secret
ballot for the purpose of granting recognition to registered Railway Trade
Unions representing all categories of Group „C‟ and Group „D‟ Employees
of Indian Railways" (hereinafter called as Modalities) formulated by the
respondent Railways are contrary to Chapter XXV and Chapter XXVI of the
Indian Railway Establishment Manual (Manual); and, (II) whether the
rejection dated 31st October, 2007 of the respondent Railways of the
nomination submitted by the petitioner for the election for recognition of a
Trade Union at the Zonal level, on the ground of the same being violative of
Clause 2(a) supra, is bad.
2. W.P.(C) No.8212/2007 was filed when the Modalities were
formulated and W.P.(C) No.2203/2013 was filed aggrieved from the
rejection of nomination. The petitions have however been argued as one
only.
3. Chapter XXV titled "Rules for the Recognition of Service
Associations of Railway Servants" in Part A thereof provides for „Rules for
the recognition of Service Associations of gazetted railway servants‟ and in
Part B thereof provides for „Rules for the recognition of associations of non-
gazetted railway servants‟. We are in these petitions concerned with the
Associations of non-gazetted railway servants.
4. Paragraph 2512 in Part B of Chapter XXV of the Manual inter alia
provides that recognition will not ordinarily be granted or continued to any
association unless it (a) consists of a distinct class of Railway servants; (b)
makes eligible for membership all railway servants of same class; and, (c) it
is registered under the Indian Trade Unions Act, 1926.
5. Chapter XXVI titled "Staff Councils and Negotiating Machinery" of
the Manual in Section I thereof titled "Staff Councils" deals with objectives
of creating Staff Councils, Powers of Staff Councils, Composition of Staff
Councils etc. Section II titled "Negotiating machinery for dealing with
disputes between Railway Labour and Railway Administrations", in
paragraphs 2615 and 2616 thereof provides as under:
"2615. The machinery is to work in three tiers, viz.--
(i) the Railway level--In this the recognised union
will have access to District or Divisional Officers
and subsequently to officers at the Headquarters
including the General Manager.
(ii) the Railway Board level--In cases where matters
are not settled at Railway level, they will be taken
up by the Federations with the Railway Board.
(iii) the Tribunal level--In cases in which agreement is
not reached between the Federation and the
Railway Board and the matters are of sufficient
importance, reference will be made to an ad hoc
Railway Tribunal composed of representatives of
the Railway Administration and labour presided
over by a neutral Chairman.
2616. The following detailed procedure is laid down for the
working of the machinery referred to above:--
(i) At the district or divisional level, the District or
Divisional Officers should meet the branches of the
recognised Unions which may be established in the
districts or divisions at least once in two months
and oftener if necessary. Each workshop will be
considered as a district. The particular branches
which should meet the District or Divisional
Officers as prescribed above should be agreed
upon between the General Manager and the
Union. In the Divisional pattern of working, the
Divisional representatives of a union, who shall
represent all the branches of the union in the
Division should be enabled to meet the Divisional
Superintendent, who may or may not be assisted by
the branch officers. The detailed procedure of
arranging these meetings would be agreed upon
with the Union, but this should include a provision
that the branch should supply in sufficient time
before the meeting the subjects which it proposes
to raise at the meeting with complete memoranda
setting out its points of view.
(ii) At the Railway Headquarters, the General
Manager or the Assistant/Deputy General
Manager in charge of staff will meet the Unions at
least once a quarter and oftener if necessary.
(iii) All disciplinary matters and subjects like
promotion, transfer etc., of individual members of
the staff which do not involve any general principle
will be excluded from the scope of the discussions
at all these levels, except at the discretion of the
officer concerned. Where, however, Unions have
been given certain privilege in these matters these
will not ordinarily be curtailed.
(iv) At the district or divisional and railway levels,
subjects will comprise of those which are within
the powers of the officers concerned.
(v) Questions concerning pay scales, allowances, etc.,
will only be discussed between the Federation and
the Railway Board and not at lower levels.
(vi) At the centre, negotiations will be between the
Railway Board and the Federation and for this
purpose, there will be quarterly meetings between
the Railway Board and the Federation.
(vii) When a matter which is raised for discussion at the
district or divisional level is not settled by
agreement, it may be raised at the railway level for
further negotiation. Similarly, a matter not settled
at the Railway level may be brought up by the
Federation to the Railway Board for discussion.
(viii) All subjects brought up for discussion at the
various levels should be disposed of as
expeditiously as possible. Brief minutes of
discussion, indicating the decision arrived at,
should be sent to Unions concerned for their
information.
(ix) If, after discussion between the Railway Board and
the Federation, agreement is not reached on any
matters of importance, such matters may be
referred to an ad hoc Railway Tribunal which will
be set up for dealing with them at the Centre. This
Tribunal will consist of an equal number of
representatives of railway labour and the Railway
Administration with a neutral Chairman. The
Tribunal will be enabled to make such
investigations as they deem necessary before they
give their decision.
(x) It would be open to Government of accept, reject
or modify the decision of the Tribunal and where
the matters in dispute affect the workers under
Ministries other than the Railway Ministry, those
Ministries will be consulted as to--
(i) whether they have any objection to the
disputes being referred to the Railway
Tribunal, or
(ii) whether they would like the dispute to be
referred to an ad hoc Commission on which
they will also be represented.
(xi) On matters which have been settled by agreement
or in which Government ultimately accept the
decision of the Tribunal, it will not be open to the
Federation to raise the same issue again for a
period of two years. In those cases in which
Government have rejected or modified the decision
of the Tribunal, the issue may be raised at the end
of one year."
6. Clause 1 of the Modalities provides that election under Secret Ballot
system for giving recognition to Trade Unions will be conducted under the
supervision of Chairman, Secret Ballot Committee appointed specially by
the Ministry of Railways for this purpose. Clause 2 of the Modalities,
insofar as relevant for the present purposes, is as under:
"2. Who all are eligible to contest the elections:-
(a) All registered trade unions of the Railways which
are registered under the Trade Union Act, 1926 for at
least one year as on 31.12.2006 and which exclusively
represent the interests of all group „C‟ and „D‟
employees of the concerned zonal railways.
(b) These registered trade unions must not have been
formed on the basis of any caste, tribe or religious
denomination or of any group within or section of such
caste, tribe or religious denomination.
(c) The registered jurisdiction of the Union should
geographically conform to the jurisdiction of the
concerned zonal General Manger to whom the
application is made and who is competent to recognize
the union and also competent to take any action against
unions as and when necessary."
7. The petitioner is admittedly a Federation of unions of all group „C‟
and group „D‟ employees of all Zones of the Railway.
8. The petitioner, at the time of holding of elections in the year 2013 for
recognition of recognised union at Zonal level, sought participation therein
but the nomination of the petitioner was rejected vide impugned letter dated
31st October, 2007 setting out the reason therefor as under:
"Nomination form submitted by you in reference to above were
scrutinized and it is noticed that as per article 4 of the
Constitution of AIREC it is a federal body of the categorical /
departmental Associations / Councils and Unions functioning
on Railways on Industrial pattern, all duly registered under
Trade Union Act. Further composition of General Body is also
base on Constituent Units. The Constituent Units of AIREC as
submitted along with the Constitution does not include all the
categories and trades working over Northern Railway, hence,
the condition 2(a) of the modalities is not fulfilled and
nomination papers filed by AIREC have been found invalid
after scrutiny by the Returning Officer, Northern Railways."
9. The contention of the counsel for the petitioner is that Clause 2(a) of
the Modalities restricting the participation in the election for recognition of
Trade Union at Zonal level to Trade Unions of group „C‟ and group „D‟
employees of that Zone only and refusal of participation to the petitioner,
representing not only group „C‟ and group „D‟ employees of the Zone but of
all over India, is contrary to the Manual.
10. One of the requirements for recognition, as per paragraph 2512 of Part
B of Chapter XXV of the Manual, as aforesaid, is that the Union must
consist of a distinct class of Railway servants. It does not say what that
distinct class should be; whether it refers to the stature / post / class in the
Railways or in a particular Zone or all India.
11. Paragraph 2615 of Section II of Chapter XXVI of the Manual, while
providing that the machinery for negotiation of disputes between Railway
Labour and Railway Administration is to be at three levels i.e. at the level of
District or Divisional Officer and subsequently to Officers at the
Headquarters and if not resolved therein, at the Railway Board level and if
not resolved therein at the Tribunal level. The same also gives no indication,
whether negotiations are to be with the Trade Union of the particular Zone
or of all India level. However while at the first level i.e. level of District or
Divisional Officer the negotiations are to be with the "recognised Union", at
the second and third level i.e. level of Railway Board and at the level of
Tribunal, negotiations are to be with the "Federations". The same is
indicative of the Manual envisaging two different entities i.e. „Trade Union‟
and „Federation‟ which can only be of several trade unions.
12. Paragraph 2616 in Section II of Chapter XXVI of the Manual, while
providing for the detailed procedure for working of the machinery provides
that A) at the District or Divisional level, the District or Divisional Officer
should meet the "branches of the recognised Union which may be
established in the Districts or Divisions"; "the particular branch which
should meet the District or Divisional Officers should be agreed upon
between the General Manager and the Union"; "in the Divisional pattern of
working, the Divisional representative of the Union should meet the
Divisional Superintendent"; "at the District or Divisional level subjects will
comprise of those which are within the powers of the officers concerned";
B) "at the Railway Head Quarters, the General Manager will meet the
Unions"; C) "at the centre, negotiations will be between the Railway Board
and the Federation" "Questions concerning pay scales, allowances etc will
only be discussed between Federation and Railway Board and not at lower
levels".
13. Both paragraphs 2615 and 2616 provide for negotiation at the
District/Divisional level with the "recognised Union" and negotiation at the
Railway Board level and the Tribunal level by the "Federation". Thus, a
distinction has been drawn between a "recognised Trade Union" and a
"Federation".
14. While according to the petitioner, a Federation, as the petitioner is, is
also a recognised Trade Union though of all India level but entitled to be
recognised at the District/Zonal level also, according to respondent
Railways, at the Zonal level negotiations have to be with a recognised Trade
Union comprising of group „C‟ and group „D‟ employees of that Zone only
and it is only at the Railway Board or the Tribunal level that a Federation of
such recognised Trade Unions of all Zones can negotiate.
15. During the hearing on 17th February, 2016, it was felt by me and
observed in the order of that date that at the Zonal level group „C‟ and group
„D‟ employees of that Zone only would form a distinct class and the refusal
of the respondent Railway to allow an All India level Trade Union
representing group „C‟ and group „D‟ employees, besides of that particular
Zone, of all other Zones also, could not be said to be unreasonable. It also
appeared that from the use in paragraph 2615 in Section II of Chapter XXVI
of the Manual of two distinct expressions i.e. recognised Union and
Federation, also it could not be said that the Modalities were contrary to the
Manual. It was felt that negotiations at the Zonal level by a Trade Union
representing group „C‟ and group „D‟ employees of that Zone only could be
more effective and beneficial for the employees than negotiations by All
India level Union, the concern whereof would be not only for the employees
of that Zone but for employees of all the Zones of the Railways.
16. The counsel for the petitioner during further hearing drew attention to
the order dated 30th October, 2007 in W.P.(C) No.7840/2007 earlier filed by
the petitioner to impugn Clause 2(c) aforesaid of the Modalities restricting
the jurisdiction of the Unions eligible to contest in the election to
geographical jurisdiction of the concerned Zone and holding (i) that a Trade
Union registered on all India basis / jurisdiction would conform to Clause
2(c); (ii) that a registered Union of All India jurisdiction would also have a
jurisdiction in respect of a particular Zone; (iii) that the interpretation of the
respondent Railway would result in exclusion of some member employees
of All India Railway Unions from the process (sic); (iv) that the object of the
process is broadest inclusion of all sections of employees; (v) that Clause
2(c) should be construed and interpreted as to include those Trade Unions
which have All India jurisdiction and are registered as such; (vi) that the
difficulty projected by the Railways i.e. need to negotiate with the Union at
a local level can be redressed in a different manner; one mechanism could be
to require the All India Union having presence in multiple Zones to have a
nominated representative in the Zone; there can be other methods of dealing
with the problem. The counsel for the petitioner informed that no appeal
was preferred by the respondent Railways against the said order; however
the petitioner, aggrieved from non-grant of the reliefs claimed, had preferred
LPA No.1341/2007 but the same was dismissed on 16th September, 2008
owing to the filing of W.P.(C) No.8212/2007, leaving it open to the
petitioner to therein urge all contentions concerning the modality of the
election process.
17. Though Clause 2(a) now under challenge was also in existence at that
time but the petitioner did not challenge the same and chose to challenge
only Clause 2(c) of the Modalities and which challenge succeeded.
18. Clause 2(a) of the Modalities supra also uses the words registered
Trade Unions which exclusively represent the interests of group „C‟ and
group „D‟ employees of the "concerned Zonal Railways". The purport of
Clause 2(a) and the purport of Clause 2(c) is not different. I have wondered
whether, owing to the order in the earlier writ petition, the challenge by the
petitioner now to Clause 2(a) should also succeed and it be held that the
rejection of the nomination of the petitioner for election for recognition of
Zonal level on the ground of the petitioner being All India level Union and
not Union of the concerned Zonal Railways only, should be allowed.
19. On consideration I am of the opinion that the question as has arisen in
these petitions cannot be said to be not res integra, for the reason of the
order dated 30th October, 2007 supra. I say so because though the court
therein held that Clause 2(c) of the Modalities should be construed and
interpreted to include All India level Unions also but also found merit in the
contention of the counsel for the respondent Railways that there is a need to
negotiate with Union at local level. The Court then proceeded to suggest
that there were mechanisms to take care of the same and suggested one such
mechanism. However no definite finding in that regard was given.
Moreover, during the hearing of appeal preferred against that order, though
not this question specifically but all other questions arising with respect to
elections for recognition of Trade Unions in accordance with Chapter XXV
and XXVI of the Manual, which I emphasise are not under challenge, were
left open for decision in this petition.
20. During the hearing I enquired from the counsel for the parties as to
what could be the mechanism to allow a recognised Union of All India level
to negotiate qua the Zonal issues.
21. The counsel for the petitioner drew attention to the constitution of the
petitioner. The relevant Articles 3,4,8,9 & 30 whereof are as under:
"Article 3. The Confederation shall be Registered under T.U.
Act, 1926.
Article 4. Composition of the Confederation
a) The Confederation shall be a federal body of the
categorical / Departmental Associations /
Councils and unions functioning on Rail wayson
Industrial pattern, all duly registered under T.U.
Act.
b) Number of Representatives:- The Constituent
units shall have equal status and privileges in the
Confederation. However, the number of
representatives in the Confederation shall be
determined proportionately according to their
membership strength.
c) The units shall have full guarantee for
representation / Negotiation facility upto the
highest level through the representatives of their
choice from the units concerned.
d) The confederation shall consist of the General
body, National Council, Central working
committee and Zonal Divisional and Branch
Committee.
e) General body:-
I) General body shall be supreme body of the
Confederation.
II) It shall constitutes of all CWC members.
III) One delegate per 200 enrolled members
from each Constituent unit subject to a
minimum of 3 delegates with maximum
ceiling limit of 75 delegates of each unit.
IV) One delegate for every 200 enrolled
Combined membership (all Units) from
each Zonal Unit / AIREC, Divl. Presidents
and Divl. Secretaries of AIREC.
f) Formation of National Council:-
National Council shall constitute of
I) All CWC Members.
II) One delegate per thousand (1000) enrolled
members from each unit.
III) All Zonal office bearers of the confederation.
IV) All Divl. and Branch Secretaries of the
Confederation.
G) Formation of Central Working Committee: CWC
shall Constitute of
I) All Central office bearers of the
Confederation.
II) All Presidents and General secretaries of
Constituents of the apex level.
III) One member per 3000 enrolled members of
fraction there of from each constituent unit
with minimum of 1 (one) and ceiling of ten
such members.
IV) Zonal Presidents and Zonal Genl. Secretaries
of AIREC.
V) One member per 5000 enrolled membership of
the combined unit strength of the Zone
Concerned.
H) Central Office Bearers / AIREC:
I) They shall be post of:-
President : 1 (one)
Working President : 1 (one)
Vice Presidents : 2 (two)
Secretary Genl. : 1 (one)
Dy. Secy Genl. : 3 (Three)
Secretary Finance : 1 (one)
Secretary Publicity : 1 (one)
Internal Auditor : 1 (one)
Total : 11
II) In order to provide proportionate
representation to all Constituent units as many
posts of Vice Presidents and Dy. Secy Genl may
be created to that extent.
III) COBS‟ & CWC members shall be elected from
amongst the serving Railway Employees subject
to the condition that retired Railway Employees
may be elected only to the posts of working
President and Vice Presidents in term of T.U.
Act only.
IV) Inclusion of retired Railway Employees in any
body of confederation shall be subject to the
provision of section 22 of T.U. Act.
V) The COBS‟ and CWC Members should not be
the office bearers and members of any other
organisations. (i.e. other than units of AIREC)
i) Set up of AIREC at Zone, Division & Branch
level.
To manage the functioning of AIREC properly at
all levels the body of Confederation shall be
formed at Zonal, Divl. and Branch Level.
I) At Zone level it shall be named AIREC
(N/Zone, SE/Zone, SR/Zone, W/-Zone, C/Zone,
E/Zone, SC/Zone (and the like)
II) Production units shall be considered as Zones.
III) Zonal Bodies shall constitute of members of
each constituent unit. Members enrolled by
each unit shall be deemed to be the members
of AIREC.
IV) Number of Zonal Office Bearers shall be same
as for COBS‟. But they will be prefixed by
"Zonal" and "Genl." Shall be omitted.
V) Zonal Genl. Body shall constitute:-
(A) All Zonal working Committee Members
(B) One delegate for every 75 members
(C) Divl. President and Divl. Secy of the
Confederation as well as constituent units
of AIREC
(D) Branch President and Branch Secy of
AIREC.
(E) Zonal working Committee shall constitute
as all Zonal office bearers, Divl. President,
Divl. Secretary AIREC of all Divisions and
two elected members at Zonal level of each
unit of AIREC.
J) Formation of Divisional / Branch Bodies of
AIREC.
I) Each Division shall have a branch,
workshops, sheds, and store, where
strength is above 500 may also form as
AIREC Branch.
II) Posts shall be the same as for Zones but
they shall be prefixed by Branch or
Divisional.
III) Divl. General body shall Constitute-
A) All Divisional working Committee
members.
B) One delegate for every 50 members
Subject to minimum three of the
Constituent.
C) Branch President and Branch
Secretaries of the Confederation.
IV) Divisional Working Committee: It shall be
(I) Divl. Office bearers of AIREC (on the
pattern of COB)
(II) Two members from each unit of AIREC
(III) Branch secretaries & Branch
Presidents of AIREC.
V) Branch Genl. Body:-
(A) All the branch executives Committee
Members.
(B) One delegate for every 25 members
subject to the minimum three of each
unit.
(C) Branch office bearer of all units.
VI) Branch executive committee shall
constitute:-
(A) Branch office Bearers.
(B) Two Members of each constituent
unit.
(C) Branch President and Branch Secy.
Of each unit of AIREC.
Article 8. Membership :
(i) The membership of the Confederation shall open
to all serving Railway Men. However, Membership
may be granted to the Retired employees subject to
the provision of T.U. Act 1926 for the purpose of
electing office bearers post of AIREC.
Article 9. Terms of Affiliation:
The Units seeking affiliation shall comply with the
followings:-
I) It must possess the qualification laid down in
Clause 4(a) of the Constitution of Confederation.
II) It shall not be parallel to any existing unit of the
Confederation. Besides this no overlapping or
dual Membership shall be permissible. The CWC
shall be competent to decide the sphere and
organisational scope of each unit.
III) Subject to the provision of clause 10 of the
Constitution the Unit shall agrees to pay any
special levy as may be fixed time to time by the
Confederation.
IV) It shall agree to expose its membership for
Scruting if and when deemed necessary by the
Confederation.
V) It shall abide by the provisions of the Constitution
of the Confederation and gives such undertaking
in writing. It also agrees to abide by mandates
and decisions taken by the confederation from time
to time.
VI) All applications seeking affiliation to the
confederation shall be placed in CWC/AIREC
meeting. It will see that granting affiliation does
in no way harm to existing constituents units.
CWCs‟s decision for affiliation for or against shall
be final.
VII) It shall also give undertaking that without having
consultation and taking into confidence of CWC
AIREC, affiliated units at any level (i.e. Central /
Zonal / Divisional) will resort direct action.
VIII) Affiliation shall not be granted to any such
organisation which is maintaining affiliation with
other organisation. It should be applicable at all
levels.
IX) For Affiliation to the Central body of the
Confederation the units shall function at the All
India level and industrial unions at Zonal level.
"Article-30. (a) DISAFFILIATION:
The affiliates of the Confederation shall loose its‟ /
their affiliation provided that:
(i) Dues are not paid to the Confederation
within the stipulated time:
(ii) Other Constitutional obligations are not
fulfilled.
The disaffiliated unit shall have the,
opportunity in respect of getting affiliation
restored on payment of all arrears due within
further three months, assigning satisfactory
reasons for the default. The disaffiliated unit
shall also have the right to appeal before the
National Council or the General body as the
case may be and the decision of the appeal
shall be final.
(b) DISCIPLINARY ACTION:
(i) The office-bearer or working committee
member of AIREC including in indiscipline
or working against the interest / aims
/objects of organisation will be issued show
cause notice and may be suspended from the
Membership of the Committee by 2/3rd
majority decision of the respective committee
or higher committee.
(ii) The member so suspended / expelled has a
right to appeal to the respective general body
whose decision will be final."
22. I am however still unable to see as to how an All India level Trade
Union, required to redress the issues in the interest of All India workmen,
can redress issues of one particular Zone and which issues may either not
concern any other Zone or may be in conflict with the interest of group „C‟
and group „D‟ employees of another Zone. Rather, it is found that the
constitution of the petitioner also is as a Federation of different Unions.
However the petitioner, instead of having separate unions for different
Zones who may form a federation, has provided for a federal structure
within itself. The petitioner, in my view, would not satisfy the requirement
of paragraph 2512 of Part B of Chapter XXV of the Manual of the Union to
consist of distinct class of Railway servants. The Railway servants of All
India, even if of the same class i.e. group „C‟ and group „D‟, cannot be
considered as a distinct class vis-à-vis the disputes at Zonal level.
23. Moreover, paragraph 2615 in Section II of Chapter XXVI of the
Manual also, as aforesaid, envisages negotiations at the Zonal level by
recognised Union and at the Railway Board or Tribunal level by Federation
of such Unions. The only inference can be that the Manual envisages
recognition of Unions at local level and with a Federation of such Unions at
the All India level. An All India Union cannot satisfy the requirement of the
local level.
24. Paragraph 2616 in Section II of Chapter XXVI of the Manual leaves
the choice of particular branches of the recognised Union which should meet
the District or Divisional Officer to the agreement between the General
Manager and the Trade Union. Similarly, the detailed procedure of
arranging meetings is also left to such agreement. Paragraph 2616(iv) also
prescribes that at the District or Divisional level, subjects of negotiations will be
only those which are in the powers of District or Zonal Officers. The periodicity of
the meetings at the District/Divisional level with the Zonal Trade Union and
at the Railway Board level with the Federation is also different.
25. It thus cannot be said that Paragraph 2(a) of the Modalities
prescribing the condition of "which exclusively represents interest of all
Group C & D employees of the concerned Zonal Railway" for a trade Union
for eligibility to contest election for recognition or interpretation of the
respondent Railways thereof as excluding a Federation, is contrary to the
Manual.
26. The Division Bench of this Court in Delhi Electricity Workers Union
Vs. NCT of Delhi 2012 SCC Online Del 3590 dealing with a contention that
in law and in principle there can be recognition of majority Trade Union
across an industry rather than only in respect of a constituent Unit of such
industry and that the essence of a Trade Union is collective bargaining and
greater the collective, greater the bargaining power and hence the question
"whether collective bargaining should be establishment wise or industry
based" (a) cited with approval the recommendations of the National
Commission of labour, 1967 that (i) practice of recognising Union at
industry / area level should be encouraged; (ii) there should be proper
demarcation of rights and functions of the industry / area recognised Unions
and plant-wise Unions and on the basis of well defined conditions; (b) cited
with approval the Code of Discipline prescribing that if a Union of workers
in a particular establishment has a membership of 50% or more of the
workers of that establishment, it should have the right to deal with matters of
purely local interest--all other workers who are not members of that Union
might operate through the representative of that Union for the industry; (c)
held that in a given case what is feasible, whether industry wise recognition
or establishment wise recognition, can be gone into by the Industrial
Tribunal by means of adjudication; the Industrial Disputes Act, 1947
contemplates such mechanism to sort out such issues; (d) held that the
ability and keenness of any Union to effectively represent the employees on
a particular issue has to be seen in the light of the particular facts of a case
and the class of employees who would be effected by such negotiation and
the question, recognition of Trade Union can be at what level needs
adjudication for which the appropriate forum would be Industrial Tribunal;
(e) held that there is no statutory provision which gives right to a Union to
seek such recognition and such a right can be claimed only by raising
industrial dispute.
27. I must mention that Supreme Court, vide order dated 4th January,
2016, in SLP(C) No.13498-13501/2013 has granted leave to appeal against
judgment aforesaid and which appeal is learnt to be still pending. There is
no stay of the judgment aforesaid of the Division Bench.
28. The same Division Bench of this Court, in Union of India Vs. Rail
Coach Factory Men's Union ILR (2012) III Del 84, also held that though
right to form a Trade Union may be a fundamental right under Article
19(1)(c) of the Constitution of India, imposition of conditions for
recognition would not per se be viewed as an unreasonable restriction within
the meaning of Article 19(4)--it is the prerogative of the employer to set
down the conditions for recognition. Though the question as has arisen
herein did not arise in that case but a reading thereof shows existence of
Zonal Unions in Railways and rules of recognition thereof. SLP(CC)
No.23523/2012 preferred thereagainst is found to have been dismissed on
22nd January, 2013.
29. In C.N.S. Officer's Guild (Regd.) Vs. Chairman, Airport Authority
of India MANU/DE/4333/2015 I had occasion to deal with the associations
as distinct from Trade Unions of Airport Authority of India (AAI) and
therefrom AAI also appears to have department wise associations and
recognition.
30. The action of respondent Railways impugned in these petitions, of not
allowing the petitioner, an All India level Trade Union, to seek recognition
at Zonal level is thus not found to be contrary to the Manual or otherwise
bad in law. As aforesaid, recognition is not a right of the petitioner as a
Trade Union and the respondent Railways as employer, if of the view that
the negotiations should be at different levels with different Unions and so
lays down procedure for recognition thereof, is entitled to do so. It is
perhaps for this reason only that the counsel for the petitioner
challenged the Modalities only on the ground of being contrary to the
Manual. However it is not found so. Moreover, even if there be any
ambiguity in the language of the Manual, once the respondent Railways is
found to be entitled to impose such conditions, its interpretation of the said
language will prevail and the petitioner, without having any right of
recognition, cannot interpret the language of Modalities differently. The
petitioner, as an All India Trade Union, if satisfies other conditions of
eligibility, can only seek recognition as a Federation.
31. The petitions thus fail and are dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
MARCH 10, 2017
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