Madras High Court
Podhu Thozhilalar Sangam – Citu vs State Of Tamil Nadu on 29 October, 2024
W.P.No.9969 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 25.09.2024
Pronounced on 29.10.2024
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.9969 of 2023 and
W.M.P.No.10018 of 2023
Podhu Thozhilalar Sangam – CITU,
Rep.by its General Secretary,
Mr.A.Jenetan, S/o.Antony
Reg.No.504/CPT,
No.21 B, Vilakkadi Koil Street,
Kanchipuram District 621 501.
... Petitioner
Vs.
1.State of Tamil Nadu,
Rep by its Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat,
Fort St.George, Chennai 600 009.
2.The Commissioner of Labour,
Office of the Labour Commissioner,
DMS Complex, Teynampet,
Chennai 600 006.
3.The Deputy Commissioner of Labour (Conciliation -I),
Plot No.PB2, SIPCOT Campus,
Near IOB Bank,
Irugkattukottai, Sriperumbudur Taluk,
Kancheepuram District.
4.M/s.NSK Bearings India Pvt. Ltd.,
Page No.1 of 17
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W.P.No.9969 of 2023
Rep. by its Management,
Plot No.A2, SIPCOT Oragadam Growth Centre,
Mathur Village,
Sriperumpudur Taluk,
Kanchipuram District 602 105.
5.Indian National Engineering Employees Union
Affiliated to INTUC,
Rep. by its President,
R.Aadhikesavan,
Plot No.A2, SIPCOT Oragadam,
Mathur Village, Sriperumbudur Taluk,
Kanchipuram District 602 105. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Mandamus to direct the respondents 1 to 3 to hold
election to determine the relative strength of all the registered Trade
Unions in the fourth respondent Company by way of secret ballot to be
conducted under the overall supervision of the 1st and 2nd respondents.
For Petitioner : Mr.N.G.R.Prasad, Senior Counsel for
Mr.S.Sivakumar
For Respondents : Mrs.M.Jayanthi, AGP for R1 to R3
Mr.G.Anand Gopalan for
M/s.Agam Legal Advocates for R4
Mr.V.Subramani for R5
ORDER
This Writ Petition has been filed seeking issuance of a Writ of
Mandamus to direct the respondents 1 to 3 to hold election to determine
the relative strength of all the registered Trade Unions in the fourth
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respondent Company by way of secret ballot to be conducted under the
overall supervision of the 1st and 2nd respondents.
2. Heard Mr.N.G.R.Prasad, learned Senior Counsel for the
petitioner and Mrs.M.Jayanthi, learned Additional Government Pleader
for the respondents 1 to 3 and Mr.Anand Gopalan, learned counsel for the
fourth respondent and Mr.V.Subramani, learned counsel for the fifth
respondent and perused the materials available on record.
3. Mr.N.G.R.Prasad, learned Senior Counsel for the petitioner
submitted that the petitioner is a registered Union affiliated to CITU and
it has been formed in the fourth respondent Company during the month of
November 2020. Out of 207 permanent employees of the fourth
respondent Company, 153 permanent employees are the members of the
petitioner Union. The petitioner Union represents the majority of the
employees of the fourth respondent Company. But the fourth respondent
had entered into a long term settlement with the fifth respondent and it
came to an end on 31.03.2022. The petitioner Union has given a charter
of demands on 03.11.2020 and the fourth respondent felt to hold talk with
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the petitioner Union. Hence, the petitioner has raised the 2k dispute on
20.11.2020. The petitioner had given a fresh charter of demand on
29.12.2021. Hence, the petitioner had raised another 2k dispute on
13.12.2022.
4. The petitioner is the majority Union, but the fourth respondent
continued to hold talks with the fifth respondent which is the minority
Union. The petitioner Union had given a strike notice on 27.01.2023 by
objecting the above attitude of the fourth respondent Company and went
on strike from 11.03.2023. The petitioner Union had given a
representation to the respondents 1 to 3 to hold election by secret ballot to
determine the relative strength for the fourth respondent Union. Hence,
the petitioner has filed this Writ Petition seeking direction against the
respondents 1 to 3.
5. In response to the above submission of the petitioner,
Mrs.M.Jayanthi, learned Additional Government Pleader for the
respondents 1 to 3 submitted that according to the fourth respondent
Company, only the fifth respondent is a recognized Trade Union and
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hence, negotiation with respective demands on behalf of the workmen has
been made with the fifth respondent. The Conciliation Authority who
conducted the periodical conciliation with regard to the demands raised
by the petitioner Union had in fact issued a Government Order in
G.O.Ms.No.135 dated 01.03.2024 and at the end of the failure of
conciliation, had referred the matter to the Industrial Tribunal, Chennai.
She further submitted that the intention of the petitioner is to paralyze the
peaceful atmosphere prevailing in the fourth respondent Industry by
making frequent demands and thereafter, withdrawing the same. The third
respondent Conciliation Authority has got no obligation to conduct any
sort of election and that too, through secret ballot system as demanded by
the petitioner.
6. Mr.G.Anand Gopalan, learned counsel for the fourth respondent
submitted that through various decisions of the Hon'ble Supreme Court
and the High Court of Madras, it has been held that the elections cannot
be ordered. There is no statutory right to the petitioner to seek for
conducting election. Even in the States where statutory provisions are
made for election, secret ballot has not been provided. In the State of
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Tamil Nadu, there is no law providing for election / secret ballot.
Therefore, the Writ Petition has been filed without any legal right.
7. Mr.N.G.R.Prasad, learned Senior Counsel for the petitioner
relied on the order of this Court held in W.P.No.24353 of 2010 dated
04.01.2011 (Podhu Thozhilalar Sangam (CITU) Vs. State of Tamil
Nadu & others), in support of their claim for direction for election
through secret ballot. It is emphasized on behalf of the petitioner that
collective bargain is the fundamental concept of the Trade Unions.
8. On perusal of the above judgment, it is seen that the Company
by name M/s.Foxconn India Private Limited itself has agreed to conduct
election through secret ballot and hence, the said judgment cannot be
cited stating that the legal position as to secret ballot has been settled.
Once the Trade Unions and the Management come to an understanding to
conduct any election for proving the strength of Union holding majority
members, it is upto them to device any methods for conducting such
elections. As such, in the State of Tamil Nadu, there is no law compelling
elections in order to issue direction to the authorities for conducting
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election as claimed by the petitioner.
9. The learned Senior Counsel for the petitioner also cited a
decision of the Hon'ble Supreme Court reported in AIR 1995 SC 1344, in
the case of Food Corporation of India Staff Union Vs. Food
Corporation of India and Others, to claim that similar directions have
already been issued by the Court for conducting elections.
10. However, Mr.G.Anand Gopalan, learned counsel for the fourth
respondent attracted the attention of this Court to the judgment of the
Hon'ble Supreme Court held in the case of Automobile Products of India
Employees' Union Vs. Association of Engineering Workers, Bombay
and Others reported in 1990 (2) SCC 444 and the Division Bench of this
Court in the case of MRF United Workers Union Vs. Government of
Tamil Nadu in W.P.No.17991 of 2008 and W.A.No.674 of 2009 dated
08.09.2009, in support of his contention and submitted that there is no
law for election in the State of Tamil Nadu and the employer and
employees have followed the code of discipline, even then the secret
ballot system has not been made as mandated.
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11. No doubt if the Trade Unions are formed with the workmen of
any Company, it should be for the purpose of ensuring the welfare of the
workmen, especially, to make collective bargaining. In the instant case,
the petitioner Union has stated that they have raised various disputes
against the fourth respondent Company. If any reference is made by the
Government to decide certain issues by the Industrial Tribunal, if it is
proved that the Union which espouses the cause does not have the
majority members, the dispute will fail in view of the lack of locus standi
for the Union.
12. It is the consistent claim of the petitioner that the petitioner has
got the highest number of members in its Union and the fourth respondent
continues to make negotiations with the fifth respondent by ignoring the
petitioner Union. The petitioner claims that the fifth respondent is a
minority Trade Union and it is unfair on the part of the fourth respondent
to hold negotiation with the fifth respondent by neglecting the interest of
the majority workmen. It is not denied by the petitioner also that in the
State of Tamil Nadu, there is no law mandating elections as claimed by
the petitioner. In some cases decided by this Court, directions have been
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issued to conduct election through secret ballot, but it is at the instance
and willingness shown by the Management itself to adopt the said
procedure.
13. The learned counsel for the petitioner has submitted that
frequent disputes has arisen in view of the unfair labour practice adopted
by the fourth respondent Company.
14. In such case, an Union which has maximum strength of
employees should be recognized for raising any dispute on behalf of the
employees or to hold any negotiations with the Management. Unless the
petitioner establishes that it has got majority strength of members, it is
not possible for the petitioner to participate in any negotiations with the
fourth respondent or expose the cause of the employees in accordance
with the principles of collective bargaining. Even in the absence of any
specific provision for conducting election, the State has got the obligation
to device certain mechanism considering the constitutional mandates in
the collective interest of the working force.
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15. In the judgment of the Division Bench of this Court held in
W.P.No.17991 of 2008 dated 08.09.2009 (MRF United Workers Union
Vs. Government of Tamil Nadu and Others), the summary of the
International Labour Organisation principles on the right to collective
bargaining has been stated as below:
“A. The right to collective bargaining is a
fundamental right endorsed by the members of the ILO
in joining the organization, which they have an
obligation to respect, to promote and to realize, in good
faith (ILO Declaration on Fundamental Principles and
Rights at Work and its Follow-up)
B. Collective bargaining is a right of employers
and their organizations, on the one hand, and
organizations of workers, on the other hand (first-level
trade unions, federations and confederations); only in
the absence of these latter organizations may
representatives of the workers concerned conclude
collective agreements.
C. The right to collective bargaining should be
recognized throughout the private and public sectors
and it is only the armed forces, the police and public
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servants engaged in the administration of the State who
may be excluded from the exercise thereof. ”
16. After considering the various methods devised by the States
with regard to the method of verification of the members of the Union
entitled for recognition, the course for verification is suggested as below:
“37. Having noted this scenario and considering
that there is continuous strife in the company, in our
view, the Court cannot simply remain a silent spectator.
We are aware that the Court has its own limitations
while exercising jurisdiction to issue appropriate writ or
direction. On analyzing the provisions of Article
19(1)(c), it recognizes the right to form association and
also the mandate of Industrial Disputes Act that there
should be recognized union and when there is a
inclination of the State Government to accept a
particular procedure, which is otherwise also accepted
in different statutes throughout the country, in our view,
the correct course will be to give a direction to the
Commissioner of Labour to call upon the two unions to
submit their membership details as per the Code of
Discipline and examine their membership as provided
under the Code over a period. In the event, there are any
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objections, the objections could be verified in the light of
clause-7 of the Code of Discipline by personal
interrogatories so as to arrive at the correct membership
of either of the two trade unions. Alternative to this
procedure namely, ballot system, which, although is
recommended by the Committee of the ILO, is not
accepted in any of the statutes which have been brought
to our notice. The recommendations of the Committee
can only be respected to this effect that there has to be a
collective bargaining agent of the workmen, which is to
be a truly and independent representative agent. As far
as the methods suggested by the Committee is
concerned, it would result into determination on the
basis of the facts arrived at a particular point of time,
which has not been very much appreciated as a proper
method. The method of verification on the other hand
will show the following of a particular union over a
longer period and would definitely be a better option.
The other alternative approach is to say that none of the
methods is recognized and therefore the choice of the
management will prevail. That certainly cannot be
permitted in view of the provisions of the fifth schedule
of the Act. The Code of Conduct has a force of
acceptance of the organizations of the workers and of
the Management and also of the Government, and is
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being followed in different undertakings. Further, it is
also in tune with the provisions of the different statutes
in different States.
38. In the circumstances, in our view, the only
alternative, as stated above, is to direct the State
Government and the Commissioner of Labour to conduct the
exercise as per the Code of Discipline, to which the State
Government is agreeable. Accordingly, the Petitioner Union
may apply to the concerned Labour Commissioner within
two weeks from today presenting the claim of its membership
figures during the last six months i.e., for the period from 1st
march, 2009 to 31st August, 2009. On receipt of such an
application, the concerned Labour Commissioner will issue
notice to the two unions, within two weeks from the date of
receipt of the application, calling upon them to submit their
membership registers and the necessary supportive
documents under the Code of Discipline within two weeks
from the date of receipt of the notice by them. The notice will
call upon them to produce their records as per the Code of
Discipline during the period of six months prior to the date
of notice. The Labour Commissioner shall thereafter
proceed to decide as to which Union is the representative
union of the workmen. We cannot permit the Management to
say that the Union which shows the larger membership at
the end of the exercise will not be recognized by the
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Management. Recognition is for the purpose of representing
the causes of the workmen in various for including before
the Management and various authorities under the Labour
Law. It is not a determination available for the sole
satisfaction of the Management. It is a factual determination
and the determination leads to a status. The Union which
establishes a larger membership at the end of the aforesaid
exercise, shall be recognized as the representative union.”
17. In fact, the above principles have been adopted by the learned
Single Judge of this Court in W.P.No.3915 of 2022, in its order dated
26.02.2024. Even in the absence of a secret ballot procedure, there is no
bar for the State to adopt any other code of discipline suiting to the
purpose and complete the exercise of finding out the Union which has got
majority strength of members. As there is no consensus between the
Management and the Union to adopt a secret ballot, I feel the third
respondent under the supervision of the respondents 1 and 2 shall adopt
any other method for verification and declare the Union which has got
maximum strength of members. On such verification, it is obligatory for
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the fourth respondent to recognize the said Union.
18. Hence, this Writ Petition is disposed by directing the
respondents 1 and 2 to conclude the exercise of verification of the
membership of the employees by following the procedure laid down by
this Court in MRF United Workers Union Vs. Government of Tamil Nadu
and Others, under paragraph No.38 of the said judgment and complete the
exercise within a period of six weeks from the date of receipt of a copy of
this order. No costs. Consequently, connected miscellaneous petition is
closed.
Index : Yes /No 29.10.2024
Speaking / Non-speaking
Neutral Citation : Yes / No
gsk
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To
1.The Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat,
Fort St.George, Chennai 600 009.
2.The Commissioner of Labour,
Office of the Labour Commissioner,
DMS Complex,
Teynampet,
Chennai 600 006.
3.The Deputy Commissioner of Labour (Conciliation -I),
Plot No.PB2, SIPCOT Campus,
Near IOB Bank,
Irugkattukottai, Sriperumbudur Taluk,
Kancheepuram District.
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R.N.MANJULA, J.
gsk
W.P.No.9969 of 2023 and
29.10.2024
https://www.mhc.tn.gov.in/judis
