Madras High Court
Dmk Icf Labour Union vs Union Of India on 22 October, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
2024:MHC:3605
W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
and W.P.No.13095 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 30.09.2024
Pronounced on 22.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE C. KUMARAPPAN
W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
and W.P.No.13095 of 2016
and M.P.Nos.1 of 2011, 1 to 3 & 1 of 2014
and W.M.P.Nos.11461 & 11462 of 2016
DMK ICF LABOUR UNION,
Rep. by its General Secretary Mr.D.Kubendiran,
No.161, MTH Road, Villivakkam,
Chennai – 600 049. ... Appellant in W.A.No.1729/2011
ICF Mazdoor Sangh,
Affiliated with National Federation of
Indian Railway Men & Indian National
Trade Union Congress,
International Transport Workers Federation (ITF),
Regn.No.2837/CNI, dated 20.03.01,
Rep. by the General Secretary,
R.Gurunathan,
350/1, Konnur High Road,
ICF, Chennai – 38. ... Petitioner in W.P.Nos.17480/2014
& 13095/2016
DMK ICF Labour Union,
https://www.mhc.tn.gov.in/judis
Page 1 of 22
W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
and W.P.No.13095 of 2016
(Regn.No.2694/CNI),
(Affiliated to Labour Progressive Federation),
Rep. by its General Secretary,
Nos.1 & 2, (Old nO.6), ICF Shopping Complex,
ICF, Chennai – 600 038. ... Petitioner in WP.No.19188/2014
Vs.
1.Union of India,
Ministry of Railways,
(Railway Board),
Rail Bhavan, New Delhi.
2.The General Manager,
Integral Coach Factory,
Chennai – 600 038.
3.The Chief Mechanical Engineer,
Integral Coach Factory,
Chennai – 600 083. ... Respondents in W.A.No.1729/2011
1.The Govt. of India,
Rep. by the Secretary to Govt.,
Ministry of Railways,
New Delhi.
2.The Railway Board,
Rep. by the Director (Establishment Labour),
Railway Board,
New Delhi.
3.The General Manager,
Integral Coach Factory,
Chennai – 600 038. ... Respondents in W.P.Nos.17480/2014
& 13095/2016
1.Union of India,
Rep. by the Secretary,
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Page 2 of 22
W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
and W.P.No.13095 of 2016
Ministry of Railways,
New Delhi.
2.The Chairman,
Railway Board,
'Rail Bhavan', New Delhi.
3.Integral Coach Factory,
Rep. by its General Manager,
ICF Colony Post,
Chennai – 600 038.
4.Chief Personnel Officer,
Integral Coach Factory,
ICF Colony Post,
Chennai – 600 083. ... Respondents in W.P.No.19188/2014
Prayer in WA.No.1729/2011: Writ Appeal filed under Clause 15 of the
Letters Patent, praying to set aside the dismissal order dated 24.08.2011
passed by the learned Single Judge of this Court in W.P.No.19705 of 2011.
Prayer in WP.No.17480/2014: Writ Petition filed under Article 226 of the
Constitution of India, praying to issue a Writ of Mandamus, directing the
respondents to adopt the Secret Ballot System for Integral Coach Factory
Employees to elect the unions for recognition of the respondents to
represent the grievances of the Workers of Integral Coach Factory on expiry
of the tenure of the Staff Council System in September 2014 as done in the
case of Rail Coach Factory, Kapurthala on the basis of the judgment of the
Hon'ble Division Bench, Delhi High Court in LPA.No.550/10, dated
30.01.12 confirmed by the Hon'ble Apex Court in Special Leave Petition
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Page 3 of 22
W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
and W.P.No.13095 of 2016
(Civil) C.C.No.23523/12 dated 22.1.13.
Prayer in WP.No.19188/2014: Writ Petition filed under Article 226 of the
Constitution of India, praying to issue a Writ of Mandamus, directing the
respondents herein to hold secret ballot election for the purpose of granting
recognition as a spokesman of the employees and workmen working in the
3rd respondent within a time frame.
Prayer in WP.No.13095/2016: Writ Petition filed under Article 226 of the
Constitution of India, praying to issue a Writ of Certiorarified Mandamus,
calling for the records on the file of the 2nd respondent in connection with
the order passed by her in her proceedings in No.2014/E(LR)III/LR/CRT/4
dated 11.3.16 and quash the same and direct the respondents to select the
Trade Union for the bilateral talks on behalf of the employees by way of
secret ballot election.
For Appellant : Mr.S.Rajendiran
(in W.A.No.1729/2011)
For Petitioner : Mr.R.Singaravelan,
(in W.P.Nos.17480/2014 Senior Advocate
& 13095/2016) for Ms.M.Srividhya
For Petitioner : Mr.K.M.Ramesh,
(in W.P.No.19188/2014) Senior Advocate
for Mr.S.Apunu
For Respondents : Mr.P.T.Ram Kumar,
(in all appeal & petitions) Standing Counsel
COMMON JUDGMENT
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and W.P.Nos.17480 & 19188 of 2014
M.S.RAMESH, J.
To attain self-sufficiency for the components meant for Indian
Railways from within the internal resources of the country, 8 Railway
Production Units (RPUs) have been set up at different parts of the country,
which are functioning as independent units under the control of the Railway
Board. These RPUs are as follows:-
a) Chittaranjan Locomotive Works at Chittaranjan for manufacture of
various types of electric locomotives.
b) Diesel Locomotive Works at Varanasi for manufacture of various
types of Diesel Locomotives, Diesel engines, standby Generating sets
and their spares.
c) Integral Coach Factory at Perambur for manufacturing of coaching
stocks of various types and their spares.
d) Rail Wheel Factory at Yelahanka for manufacture of various types of
wheels, axles and wheel sets.
e) Rail Coach Factory at Kapurthala for manufacture of coaching
stocks of various types and their spares.
f) Diesel Modernization Works, Patiala for midterm rehabilitation and
modernization of Diesel Locomotives and manufacture of critical
spares.
g) Rail Wheel Plant, Bela Distt Saran (Bihar) for manufacture of
Wheel.
h) Modern Coach Factory, Lalgang, Raebareli (UP) for manufacture of
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and W.P.Nos.17480 & 19188 of 2014
coaching stocks of various types and their spares.
2. The grievances of the Trade Unions in this Writ Appeal and Writ
Petitions are that the Staff Council alone is the body constituted to put forth
the grievances of the Trade Unions in RPUs, whereas, the Trade Unions in
most of the Zonal Railways are permitted to represent the workmen for
redressal of their grievances.
3. While 12 members of the Staff Councils are elected by conducting
secret ballots without any Trade Union Banner, 12 members are nominated
from the administrative side. Since the Staff Councils are composed of
equal members of the Staff Management as that of the workers, the
efficiency in addressing the grievance of the workmen is seriously affected,
owing to difference of opinion between the equally divided groups. This
apart, the Council is headed by the gazetted officer nominated by the
General Manager creating further dominance of the Management. It is in
this background, these Trade Unions seek for direction from this Court to
the Integral Coach Factory (ICF), Perambur, to adopt a Secret Ballot System
for election of representatives from the Trade Unions, who shall address the
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and W.P.Nos.17480 & 19188 of 2014
grievances of the workers, in the place of the Staff Council System. When a
similar request was made by DMK ICF Labour Union before this Court in
WP.No.19705 of 2011, seeking for recognition of Trade Unions for
representing the employees of ICF through conduct of secret ballot, a
learned Single Judge had rejected the plea through an order dated
24.08.2011, by holding that there is no law for providing recognition of
Trade Union in the State of Tamil Nadu. This order of the learned Single
Judge is assailed in WA.No.1729 of 2011.
4. In this background, when Railways had issued instructions on
26.06.2002, to consider the applications by the affiliates of the Bharat Rail
Mazdoor Sangh (BRMS) and others for grant of recognition, the same was
challenged by another Trade Union before this Court in WP.No.25274 of
2002 and by an order dated 17.10.2003, a learned Single Judge of this Court
had set aside the instructions dated 26.06.2002, by placing reliance on the
judgment of the Hon'ble Supreme Court in 'Food Corporation of India
Staff Union Vs. Food Corporation of India & others' reported in '1995
Supp (1) SCC 678', and holding that the only feasible and reliable way of
testing the strength of a Trade Union, was to adopt the Secret Ballot System,
in place of the then existing system of representation. This order of Writ
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and W.P.Nos.17480 & 19188 of 2014
Petition came to be ultimately challenged before the Hon'ble Supreme
Court, which Special Leave Petition was dismissed on 08.03.2004,
upholding the decision of the Madras High Court.
5. Incidentally, when a Trade Union attached to one of RPUs, namely
Rail Coach Factory at Kapurthala, had sought for recognition of the
registered Trade Union, representing the employees of RPUs, a learned
Single Judge of the Delhi High Court had issued a Writ of Mandamus to the
RPU, to permit the Trade Unions to participate in the secret ballot for
determining which railway unions should be accorded recognition and
consequently, represent in the Joint Consultative Machinery (JCM). The
order of the learned Single Judge of the Delhi High Court was challenged in
LPA No.550 of 2010 which was dismissed on 30.01.2012. So also the SLP
against the same was dismissed on 22.01.2013. Consequently, the Railway
Board, through its letter dated 23.01.2014, extended secret ballot election to
the RPU at Kapurthala for recognition of Trade Union for representation in
JCM.
6. The grievance of these Trade Unions functioning at ICF is that the
system of Staff Council deprives the workers of an effective representation
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and W.P.Nos.17480 & 19188 of 2014
since the composition of the Council is equally split between the
Management and the representatives of the Trade Unions and further, the
Council is headed by the General Manager.
7. Before we further delve into the claim of the Trade Unions in these
cases, we deem it appropriate to address the rights of the Trade Union for
the purpose of collective bargaining. The right to form association or Trade
Unions, is a fundamental right under Article 19(1)(c) of the Constitution of
India. Section 8 of the Trade Unions Act provides for registration of a Trade
Union if all the requirements of the said enactment are fulfilled. The right
to form associations and unions and provide for their registration was
recognized, obviously for conferring certain rights on Trade Unions. The
necessity to form unions is for voicing the demands and grievance of the
labour. Trade Unionists act as mouthpieces of labour. The strength of a
Trade Union depends on its membership. Therefore, the Trade Unions with
sufficient membership strength are able to bargain more effectively with the
Managements, as held by the Hon'ble Supreme Court in the case of 'B.R.
Singh Vs. Union of India' reported in '(1989) 4 SCC 710'.
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and W.P.Nos.17480 & 19188 of 2014
8. When there are numerous Trade Unions in a given organization and
when it comes to collective bargaining for redressal of the grievances of the
workers, the very object to form an association would stand enervated. The
rights of the workers must be interpreted in a purposive manner and with a
social objective of promoting industrial harmony. The interpretation of
labour legislation in a matter of this nature must be in the light of Article 43-
A of the Constitution of India, ensuring effective participation of workers
during collective bargaining. We deem it appropriate to mention here that
the right to identify a sole bargaining agent has already been recognized by
the Courts.
9. In Food Corporation of India Staff Union's case (supra), the
Hon'ble Supreme Court had recognized the system of secret ballot and 'sole
bargaining system' in the following manner:-
“1. Collective bargaining is the principal raison d'être
of the trade unions. However, to see that the trade union,
which takes up the matter concerning service conditions of
the workmen truly represents the workmen employed in the
establishment, the trade union is first required to get itself
registered under the provisions of Trade Unions Act, 1926.
This gives a stamp of due formation of the trade union and
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assures the mind of the employer that the trade union is an
authenticated body; the names and occupation of whose
office-bearers also become known. But when in an
establishment, be it an industry or an undertaking, there are
more than one registered trade unions, the question as to
with whom the employer should negotiate or enter into
bargaining assumes importance, because if the trade union
claiming this right be one which has as its members minority
of the workmen/employees, the settlement, even if any
arrived between the employers and such a union, may not be
acceptable to the majority and may not result in industrial
peace. In such a situation with whom the employer should
bargain, or to put it differently who should be the sole
bargaining agent, has been a matter of discussion and some
dispute. The “check off system” which once prevailed in this
domain has lost its appeal; and so, efforts are on to find out
which other system can foot the bill. The method of secret
ballot is being gradually accepted. All concerned would,
however, like to see that this method is so adapted and
adjusted that it reflects the correct position as regards
membership of the different trade unions operating in one
and the same industry, establishment or undertaking.....”
10. In 'All Escorts Employees Union Vs. State of Haryana & others'
reported in '(2017) 16 SCC 336' the Hon'ble Supreme Court had held that
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and W.P.Nos.17480 & 19188 of 2014
the object of Trade Union is primarily for the purpose of regulating relations
between workmen and employers or between workmen and workmen or
between employers and employers. Such a grievance redressal system
would only be effective, when the elected representatives of the workmen
bargain their rights with the Management through the Trade Union alone.
11. On the other hand, when such bargaining on behalf of the
workmen through the Trade Union are accompanied by equal number of
representations of the Management, forming a Council, we are unable to
appreciate, as to how 12 representatives of the workmen could
independently and efficaciously address the grievances of the workers
before JCM, more particularly, when the adverse influence and dominance
of the Management representatives in the Council cannot be ruled out. This
is precisely the grievance of the Trade Unions of ICF on the system of
grievance redressal through the Staff Council.
12. Incidentally, the system of representation through Staff Council,
functioning in the Zonal Railways, was abolished and a secret ballot
election of recognition of Trade Unions in the Indian Railways was
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introduced. The final modalities for holding such secret ballot election in
the Zonal Railways have also been introduced in the year 2019. Whereas,
the RPUs, which is an integral part of the Indian Railways and has been
constituted to attain self-sufficiency for Rolling Stock and other components
meant for Indian Railways alone, has been following the system of
negotiations through Staff Councils.
13. The learned standing counsel for ICF made an attempt to justify
this aspect by submitting that ICF is an important unit of the Indian
Railways involved in an indigenous manufacture of electric and diesel
locomotives, engines, spares etc., and therefore, the conditions of service of
the workmen in these RPUs, cannot be equated with that of the workmen
under the Zonal Railways.
14. We do not approve such a submission for the simple reason that
the workmen in the Zonal Railways are involved in more crucial and critical
service conditions, commuting the general public and goods between
different stations and any disruption in the day-to-day affairs of the Zonal
Railways, would directly affect the public at large, unlike the RPU. It is
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therefore more pivotal that an effective system for bargaining is adopted.
15. The Trade Unions in the present cases seek for Secret Ballot
System for ICF employees to elect the representatives from various Trade
Unions for representing their grievances in the JCM. As already observed
by us hereinbefore, when the Railways had earlier issued instructions to
consider applications by the affluents of BRMS and others, for grant of
recognition, Southern Railway Mazdoor Union had challenged these
instructions in WP.No.25274 of 2002 before this Court, wherein, the
instructions of the Railways were set aside, holding that the only feasible
and reliable way of testing was to adopt the secret ballot system. This order
of the learned Single Judge of this Court came to be confirmed by the
Hon'ble Supreme Court.
16. Likewise, when a Trade Union attached to the Rail Coach Factory
at Kapurthala had sought for recognition of the registered Trade Unions and
for formulation of modalities for conducting secret ballot for the purpose of
grant of such regulation to the Trade Union, a learned Single Judge of the
Delhi High Court had passed an order in WP.(Civil).No.26 of 2008, dated
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and W.P.Nos.17480 & 19188 of 2014
03.03.2010, directing the Railways to apply the modalities spelt out in their
circular dated 09.10.2007 to RPU at Kapurthala and permit the Trade Union
therein, to participate in the secret ballot for determining which Railway
Unions should be accorded recognition and consequently, granted
representation in JCM. The order in the Writ Petition before the Delhi High
Court was also affirmed by the Hon'ble Supreme Court.
17. In the case of 'Chairman, SBI & another Vs. All Orissa State
Bank Officers' Association & others' reported in '2002 (5) SCC 669', the
object behind collective bargaining by a Trade Union was discussed by the
Hon'ble Supreme Court as below:-
.... “15. With growth of industrialization in the country
and progress made in the field of trade union activities the
necessity for having multiple unions in an industry has been
felt very often. Taking note of this position power has been
vested in the management to recognize one of the trade
unions for the purpose of having discussions and
negotiations in labour-related matters. This arrangement is
in recognition of the right of collective bargaining of
workmen/employees in an industry. To avoid arbitrariness,
bias and favouritism in the matter of recognition of a trade
union, rules have been framed laying down the procedure
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for ascertaining which of the trade unions commands
support of majority of workmen/employees. Such procedure
is for the benefit of the workmen/employees as well as the
management/employer since collective bargaining with a
trade union having the support of majority of workmen will
help in maintaining industrial peace and will help smooth
functioning of the establishment. Taking note of the
possibility of multiple trade unions coming into existence in
the industry, provisions have been made in the Rules
conceding certain rights to non-recognized unions. Though
such non-recognized unions may not have the right to
participate in the process of collective bargaining with the
management/employer over issues concerning the workmen
in general, they have the right to meet and discuss with the
employer or any person appointed by him on issues relating
to grievances of any individual member regarding his
service conditions and to appear on behalf of their members
in any domestic or departmental enquiry held by the
employer or before the Conciliation Officer or Labour Court
or Industrial Tribunal. In essence, the distinction between
the two categories of trade unions is that while the
recognized union has the right to participate in the
discussions/negotiations regarding general issues affecting
all workmen/employees and settlement, if any, arrived at as
a result of such discussion/negotiations is binding on all
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workmen/employees, whereas a non-recognized union
cannot claim such a right, but it has the right to meet and
discuss with the management/employer about the grievances
of any individual member relating to his service conditions
and to represent an individual member in domestic inquiry
or departmental inquiry and proceedings before the
Conciliation Officer and adjudicator. The very fact that
certain rights are vested in a non-recognized union shows
that the Trade Unions Act and the Rules framed thereunder
acknowledge the existence of a non-recognised union. Such
a union is not a superfluous entity and it has a relevance in
specific matters relating to administration of the
establishment. It follows, therefore, that the
management/employer 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. It is relevant to note here that the
right of the citizens of this country to form an association or
union is recognized under the Constitution in Article
19(1)(c). It is also to be kept in mind that for the sake of
industrial peace and proper administration of the industry it
is necessary for the management to seek cooperation of the
entire workforce. The management by its conduct should not
give an impression as if it favours a certain section of its
employees to the exclusion of others which, to say the least,
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will not be conducive to industrial peace and smooth
management. Whether negotiation relating to a particular
issue is necessary to be made with representatives of the
recognized union alone or relating to certain matters
concerning individual workmen it will be fruitful to have
discussion/negotiations with a non-recognized union of
which those individual workmen/employees are members is
for the management or its representative at the spot to
decide. At the cost of repetition we may state that it has to be
kept in mind that the arrangement is intended to help in
resolving the issue raised on behalf of the workmen and will
assist the management in avoiding industrial unrest. The
management should act in a manner which helps in uniting
its workmen/employees and not give an impression of a
divisive force out to create differences and distrust amongst
workmen and employees....”
18. We have already expressed that a Secret Ballot System for
determining the recognition of a Trade Union in RPU would be more
suitable and have rendered our reasons thereto. We are now appraised that
such a system, introduced in the Rail Coach Factory at Kapurthala, pursuant
to the orders of the Delhi High Court, is functioning smoothly. In this
background, we are of the affirmed view that the same system of secret
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ballot for recognition of Trade Union would be more apt and conducive for
redressal of the grievances of the workmen of ICF. Thus, the Trade Unions
in the present case, are entitled to succeed.
19. The learned Single Judge in his order passed in WP.No.19705 of
2011 dated 24.08.2011, had rejected the plea of one of the Trade Unions,
predominantly on the ground that there is no law in the State of Tamil Nadu
for recognition of a Trade Union. We have rendered our findings with
regard to preferability of having a recognized Trade Union through a secret
ballot and in view of the same, the order of the learned Single Judge passed
in WP.No.19705 of 2011, is hereby set aside. Accordingly, a Writ of
Mandamus is hereby issued to the respondents herein, to forthwith
formulate modalities, for holding a secret ballot for recognition of Trade
Unions in the Integral Coach Factory, Perambur and consequently, permit
the representatives of such elected Trade Unions for negotiations/bargaining
in the Joint Consultative Machinery. Such a decision shall be taken atleast
within a period of three (3) months from the date of receipt of a copy of this
order.
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20. With the above directions, the Writ Appeal and the Writ Petitions
stand allowed. No costs. Connected miscellaneous petitions are closed.
[M.S.R., J] [C.K., J]
22.10.2024
Index: Yes
Speaking order
Internet: Yes
Neutral Citation: Yes
Sni
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and W.P.Nos.17480 & 19188 of 2014
To
1.Union of India,
Ministry of Railways,
(Railway Board),
Rail Bhavan, New Delhi.
2.The General Manager,
Integral Coach Factory,
Chennai – 600 038.
3.The Chief Mechanical Engineer,
Integral Coach Factory,
Chennai – 600 083.
4.The Govt. of India,
Rep. by the Secretary to Govt.,
Ministry of Railways,
New Delhi.
5.The Railway Board,
Rep. by the Director (Establishment Labour),
Railway Board,
New Delhi.
6.The Chairman,
Railway Board,
'Rail Bhavan', New Delhi.
7.Chief Personnel Officer,
Integral Coach Factory,
ICF Colony Post,
Chennai – 600 083.
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and W.P.Nos.17480 & 19188 of 2014
M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
Sni
Pre-delivery judgment made in W.A.No.1729 of 2011
and W.P.Nos.17480 & 19188 of 2014
22.10.2024
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