Madras High Court
Ranipet Labour Union vs Roca Ranipet Labour Union
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, V.Bhavani Subbaroyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved On Judgment Pronounced On
20.03.2019 08.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
Writ Appeal No.936 of 2019
and
Civil Miscellaneous Petition Nos.7059 and 7060 of 2019
Ranipet Labour Union,
Rep., by its Secretary, Shri S.Nagarajan,
17, Mahatma Gandhi Road,
Ranipet, Vellore District-632 401. .. Appellant/1st Respondent
-vs-
1.Roca Ranipet Labour Union,
Rep., by its Secretary,
Regn.No.1581/VLR,
No.13, A. Ambedkar Street,
Navalpur-632 401,
Vellore District. 1st Respondent/Writ Petitioner
2.The Management of Roca Bathroom
Products Private Limited,
11, Mahatma Gandhi Road,
Ranipet, Vellore District-632 401. .. 2nd Respondent/2nd Respondent
APPEAL under Clause 15 of the Letters Patent to set aside the
order dated 08.03.2019 made in W.P.No.4505 of 2019 on the file of this
Court.
http://www.judis.nic.in
2
For Appellant : Mr.V.Prakash, Senior Counsel
assisted by Mrs.M.Karthikeyani
For Respondent-1 : Mr.Balan Haridas
******
JUDGMENT
T.S.Sivagnanam, J.
This appeal by the appellant/1st respondent is directed against the order in Writ Petition No.4505 of 2019 dated 08.03.2019.
2.The said writ petition was filed by the 1st respondent-Labour Union praying for issuance of a Writ of Certiorarified Mandamus to quash the order passed by the Industrial Tribunal, Tamil Nadu, Chennai, dated 05.02.2019 in I.A.No.6 of 2019 in I.D.Nos.3 and 29 of 2013 and to direct the Industrial Tribunal to implead the 1st respondent-Labour Union as a party respondent in I.D.Nos.3 and 29 of 2013. The writ petition was allowed by the impugned order thereby, the 1st respondent-Union was impleaded as a party respondent in I.D.Nos.3 and 29 of 2013. The appellant, who was the 1st respondent in the writ petition is aggrieved by such order. The appellant/1st respondent is the Labour Union which http://www.judis.nic.in 3 raised the industrial dispute now pending on the file of the Industrial Tribunal in I.D.Nos.3 and 29 of 2013. The following facts would be relevant for the disposal of this appeal.
3.The appellant-Labour Union raised the industrial dispute on behalf of its workmen who were employed by the 2nd respondent- Management, the same was referred for adjudication before the Industrial Tribunal, Chennai. At the relevant time, the appellant-Labour Union was the only union representing all the workmen of the 2nd respondent-Management. According to the appellant, the Management has been signing settlements with them with regard to the wages and other conditions of service of the workmen for several years and the last wage settlement was signed on 21.09.2006, which came to an end on 30.09.2010. After the wage settlement came to an end, the appellant- Union raised a charter of demands and at the relevant time, elections were held to the office bearers of the appellant-Union and they were elected. The elected office bearers chose to commence litigation against the 2nd respondent-management to press their charter of demands. There was a dissenting voice among a group of workers who opined that issues relating to wage revision and other conditions of service could be settled through negotiation with the 2nd respondent-Management. This http://www.judis.nic.in 4 dissent caused a rift in the appellant-Union ultimately leading to the expulsion of some of the workmen from the appellant-Union. These expelled workmen formed the 1st respondent-Union called the Roca Ranipet Labour Union, which was registered under the provisions of the Trade Unions Act, 1926. They stated that they had membership of 122 workers in the new union, they negotiated with the 2nd respondent- Management and entered into a settlement dated 21.01.2019. Since the dispute raised by the appellant-Union was referred to the Industrial Tribunal for adjudication, contending that any orders passed in the industrial dispute would affect the rights of the members of the 1 st respondent-Union, they sought to implead themselves in the industrial dispute and filed I.A.No.6 of 2019. The impleadment was opposed by the appellant-union and the Industrial Tribunal by order dated 05.02.2019 dismissed the application primarily on the ground that earlier, I.A.No.4 of 2018 was filed for impleading the 1 st respondent- Union by the 2nd respondent-management which was dismissed and therefore, a second application for impleadment of the 1st respondent- Union cannot be entertained. Further, the Industrial Tribunal came to the conclusion that there was lack of bona fides on the side of the 1 st respondent-Union and therefore, the application was not maintainable. http://www.judis.nic.in 5
4.The 1st respondent-Union filed the writ petition contending that they have a right to be heard in the matter, when it represents a sizeable number of workers of the 2nd respondent-Management. Further, it was contended that any decision by the Industrial Tribunal in the pending dispute raised by the appellant-Union would have a bearing on their working conditions and therefore, it is imperative that they be made a party and heard. Further, it was contended that I.A.No.4 of 2018 was filed by the 2nd respondent-management to implead the 1st respondent-Union in the dispute and in the said application, the 1 st respondent-Union was not made as a party and therefore, on the said ground, their application for impleadment could not have been rejected. Further, it was contended that the 1st respondent-Union has entered into a settlement with the 2nd respondent-Management on 21.01.2019 and in case, any award is passed relating to the service condition of the workmen, the settlement dated 21.01.2019 would be undone and the members of the 1st respondent-Union would be bound by the award passed by the Industrial Tribunal.
5.Referring to Section 10(4) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”), it was contended that the Industrial Tribunal has power to decide all incidental questions and http://www.judis.nic.in 6 therefore, impleading the 1st respondent-Union is absolutely necessary. Further, by referring to Section 18(3)(d) of the Act, it was submitted that once the Industrial Tribunal passed an award, it is binding on all workmen and in such event, it becomes mandatory that the 1st respondent-Union is impleaded and heard in the matter before passing the award. In support of these contentions, reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Hochtief Gammon vs. Industrial Tribunal, Bhuvaneshwar & Ors., AIR 1964 SC 1746; the decision of this Court in the case of Hindustan Petroleum Corporation Ltd. Vs. The Presiding Officer, Central Government Labour Court cum Industrial Tribunal, 2008 (4) CTC 819; and the decision of the Hon'ble Division Bench of this Court in the case of TUCS Ltd., Madras vs. S.Loganathan & Ors., 1986 (2) LLN 286.
6.The appellant resisted the prayer sought for in the writ petition contending that at the time of reference of the dispute to the Industrial Tribunal in the year 2013, the appellant-Union was the only union consisting of all workmen of the 2nd respondent-Management and the Tribunal has no jurisdiction to add parties at the time of adjudication. Therefore, it was contended that the decision of the Hon'ble Supreme http://www.judis.nic.in 7 Court in Hochtief Gammon (supra), cannot come to the aid and assistance of the 1st respondent-Union. Further, it is submitted that the 1st respondent-Union is toying the line of the 2nd respondent- Management and if they are to be impleaded, it would undermine the larger interest of the workmen. Further, it was contended that the 1st respondent-Union had undertaken before the Industrial Tribunal that they are not willing to be a party in the proceedings when the Management filed I.A.No.4 of 2018 to implead them and hence, it is not open for the 1st respondent-Union to file a separate application once against for impleading themselves in the industrial dispute and the same would be hit by the principles of res judicata.
7.Further, it is submitted that the 2nd respondent-Management contended before the Industrial Tribunal that settlement has been arrived at between the Management and the 1st respondent-Union on 21.01.2019 and the same should be the basis for the award and in such an event, the right of the majority workers who are all members of the appellant-Union would be undermined. Further, the 1st respondent- Union being a sponsored union by the 2nd respondent-Management should not be allowed to represent the workers in the dispute before the Industrial Tribunal. Further, it was contended that the Management by http://www.judis.nic.in 8 entering into a settlement with the 1st respondent dated 21.01.2019 has committed an unfair labour practice as envisaged under Section 25-T of the Act and such conduct of the Management is liable for penal action.
8.Further, by referring to Section 18(3)(b) of the Act, it was submitted that unless the parties are summoned to appear, the award is not binding on the 1st respondent-Union and consequently, the right of the members of the 1st respondent-Union is in no manner affected. Further, it was contended that unless a union is recognised, they have no right to be heard or called for negotiation and in this regard, reliance was placed on the decision of the Division Bench of this Court in the case of MRF United Workers Union vs. Government of Tamil Nadu, 2009 (4) LLJ 685 (Mad). Thus, it was the submission that in the absence of recognition of the 1st respondent-Union, the Industrial Tribunal was right in dismissing the application for impleadment.
9.Further, it was contended that the 1st respondent-Union is neither a necessary party, nor a proper party in the proceedings and therefore, should not be permitted to implead themselves in the pending industrial dispute initiated by the appellant-Union. Further, it was contended that the filing of the impleading application at the fag end of http://www.judis.nic.in 9 the adjudication will clearly show that the 1st respondent-Union is a sponsored Union of the 2nd respondent-Management. The 2nd respondent-Management contended that it is necessary that all the workmen are heard after which, if an award is passed, it could be effectively and uniformly implemented. Further, merely because the earlier application filed by the 2nd respondent-Management to implead the 1st respondent-Union was rejected on account of the situation prevailing then, an application by the 1st respondent-Union to implead themselves is not barred by the principles of res judicata.
10.The learned Writ Court framed the following point for consideration:-
“Whether the petitioner Union is entitled to be impleaded as a party to the dispute pending before the Industrial Tribunal, Chennai, in terms of the scheme of the Industrial Disputes Act and also the decisions rendered by the Hon'ble Supreme Court and this Court.”
11.The learned Writ Court opined that what is to be seen is whether the adjudication would be effective and enforcible when sizeable chunk of workmen were not heard by the Tribunal and any http://www.judis.nic.in 10 award to be passed in the matter would be binding on them as well. Further, it held that there cannot be any estoppal against the 1 st respondent-Union in seeking to implead themselves in the pending dispute.
12.With regard to the contention raised by the appellant regarding the applicability of the decision of the Hon'ble Supreme Court in Hochtief Gammon (supra), the Court pointed out that in the instant case, adjudicatory process is not yet over and when the body of the workmen feels aggrieved that they are not heard, the doors of the Tribunal cannot be shut on them stating that at the time of reference, the 1st respondent-Union was not in existence at all and such an argument does not carry much conviction in the Court under the scheme of the Industrial Disputes Act.
13.With regard to the contention raised by the appellant that the award to be passed by the Industrial Tribunal would not affect the members of the 1st respondent-Union, the Court held that in the light of the specific provisions contained in Section 18(3), there cannot be dual conditions of service for workmen in the same establishment. Further, the contention that the 1st respondent-Union was not summoned by the http://www.judis.nic.in 11 Tribunal and therefore, any award to be passed will not bind them was also rejected.
14.With regard to the plea of res judicata, the Court held that the earlier application was filed by the Management in a different set of circumstances and an application by the 1st respondent-Union to implead themselves is not barred by the principles of res judicata. Noting that if impleadment is permitted there can be a delay in the adjudication of the dispute, yet the Court opined that the 1st respondent-Union having considered its workmen as its members, they have a considerable say in the conditions of service binding on the workmen for the years to come and they cannot be shut out on the ground that the resolution of the dispute may get prolonged before the Tribunal. With the above reasons, the writ petition was allowed.
15.We have heard Mr.V.Prakash, learned Senior Counsel, assisted by Mrs.M.Karthikeyani, learned counsel for the appellant; and Mr.Balan Haridas, learned counsel for the 1st respondent-Union.
16.The facts, which have been stated above are not in dispute. http://www.judis.nic.in 12
17.The appellant-Union was the only union which enjoyed the membership of all workmen employed in the 2nd respondent- Management. Industrial disputes arose in the Union, after the award settlement signed on 21.09.2006, which came to an end on 30.09.2010, the appellant-Union wherein no mood to negotiate with the 2nd respondent-Management to enter into an award settlement. One section of workers opined that dialogue and discussions with the 2nd respondent-Management would yield better results. This ultimately led to expulsion of the dissent members from the appellant-Union. Those members who formed part of the dissenting group got themselves organised and formed a separate trade union, viz., the 1st respondent- Union and got themselves registered under the provisions of the Trade Unions Act, 1926. That apart, they discussed their grievances with the 2nd respondent-management and the fruits of such discussions matured into a settlement dated 21.01.2019. Much prior to that, the 2 nd respondent-Management filed I.A.No.4 of 2018 and prayed for impleading the 1st respondent-Union in the industrial dispute. They contended that it has to come to their knowledge that large number of workers joined the 1st respondent-Union which has been registered in 2017 and it is imperative that the 1st respondent-Union is impleaded as http://www.judis.nic.in 13 a party to the dispute, as any award passed by the Tribunal would have a binding effect on them as well.
18.The appellant resisted the application by contending that they are the only recognised union since 1953 and the Management had entered into a settlement in the year 2006 which expired on 30.09.2010 after which, the appellant-Union raised the industrial dispute with regard to the charter of demands and other demands and when the dispute has been referred to and pending before the Tribunal, the methodology adopted by the 2nd respondent-Management is only to delay the proceedings and the Management is indulging in unfair labour practices as enumerated under Schedule V of the Act. The Tribunal by order dated 26.02.2018 dismissed the application. The 1st respondent-Union after having entered into a settlement with the Management on 21.01.2019, filed I.A.No.6 of 2019 to implead themselves as a party to the industrial dispute.
19.In the affidavit filed in support of the impleading application, the 1st respondent-Union had stated that when the Management filed I.A.No.4 of 2018 to implead them as a party to the industrial dispute, they were not interested in getting themselves impleaded, since they http://www.judis.nic.in 14 wanted the issues to be resolved through direct negotiations with the Management and ultimately after vigorous persuasion, the Management made a reasonable offer which was acceptable to the majority of the workmen and accordingly, they signed the settlement and therefore, they sought to implead themselves in the dispute.
20.The first issue to be considered is whether the application for impleadment is liable to be rejected on the principles of res judicata. The answer to the question should be in the negative and we say so for the following reasons.
21.The first application for impleadment was not filed by the 1st respondent-Union, but by the 2nd respondent-Management in the year 2018, that is, much prior to the settlement dated 21.01.2019 between the 1st respondent-Union and the 2nd respondent-Management. At that point of time, the 1st respondent-Union took a stand that they do not want to be dragged into the industrial dispute and they wanted to negotiate with the Management to arrive at a settlement. This persuasive attitude of the 1st respondent-Union appears to have yielded results culminating in a settlement dated 21.01.2019. Armed with such settlement, the 1st respondent-Union wanted themselves to be http://www.judis.nic.in 15 impleaded in the industrial dispute as any award passed by the Tribunal would bind all workmen, as there cannot be dual service conditions for the workmen of a single establishment. Therefore, we are of the clear view that the application for impleadment filed by the 1st respondent- Union is not barred by the principles of res judicata.
22.Regarding the effect of Section 18(3), the Hon'ble Supreme Court in Hochtief Gammon (supra), held that if it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represents the interest either on the side of the employer, or on the side of the employee, it may direct that other persons should be joined who would be necessary to represent such interest. Further, it was held that if the union specified in the reference do not represents all the employees of the undertaking, it may open to the Tribunal to add such other unions as it may deem necessary. The test formulated in Hochtief Gammon (supra) is that addition of the party necessary to make the adjudication itself effective and enforceable would the non-joinder of the party make arbitration proceedings ineffective and unforceable. http://www.judis.nic.in 16
23.If the above test formulated in Hochtief Gammon (supra) case is applied to the case on hand, it has to be necessarily held that the 1st respondent-Union should be made a party to the dispute. The learned Writ Court has recorded that the 1st respondent-Union enjoys the membership of 90 workmen of the 2nd respondent-Management.
24.We are not at this stage going into the aspect as to whether the appellant-Union is the majority union and whether the 1 st respondent-Union is the minority union. All that is required to be seen is whether the 1st respondent-Union would be a necessary party for an effective adjudication of the industrial dispute. It is imperative that the 1st respondent-Union should be made a party to the dispute, more particularly, in the light of the settlement dated 21.01.2019 entered into between the 1st respondent-Union and the 2nd respondent-Management. It has to be borne in mind that when the dispute was raised by the appellant-Union in the year 2013, they were the only trade union representing all the workers of the 2nd respondent-Management. Therefore, if any award is passed by the Industrial Tribunal in the dispute raised by the appellant-Union and referred for adjudication, it would bind the members of the 1st respondent-Union. Therefore, the 1st respondent-Union has to be necessarily heard by the Industrial Tribunal. http://www.judis.nic.in 17
25.In the case of TUCS Ltd. (supra), an industrial dispute between the appellant and its employees' union was conciliated before the Deputy Commissioner of Labour and a settlement was arrived at under Section 12(3) and quietus was given to the issue. With regard to the dispute relating to non-employment of the employees, it was agreed to be left for the informal arbitration by the Commissioner of Labour. The Commissioner of Labour upheld the non-employment of the workmen. The workmen questioned the decision of the Commissioner of Labour by a writ petition, which was allowed. The management of TUCS Limited filed writ appeal against the said decision contending that the parties by a settlement arrived at under Section 12(3) of the Act, chose to settle the dispute relating to non-employment by an informal arbitration, agreed to be bound by the decision of the informal arbitration and the Commissioner of Labour functioned only as an informal arbitrator and hence, the proceedings of the Commissioner of Labour cannot fall within the purview of Section 10A of the Act and his decision is final and binding on the parties. The Hon'ble Division Bench held that though “settlement” within the meaning of Section 2(p) of the Act takes in a settlement arrived at in the course of conciliation proceedings, as the one entered into in the said case, yet the question http://www.judis.nic.in 18 to be posed is as to whether the dispute was settled or not by such arrangement.
26.It was further held that an arrangement or agreement to refer an industrial dispute to an arbitrator cannot amount to settlement under the Act, the reason being, the dispute subsists even after such an arrangement or agreement, and it is not put an end to and given a quietus by the arrangement or agreement. Further, it was held that if the terms of the settlement did not settle the dispute as such and there was only an agreement to refer the matter to arbitration, such an agreement must only be held to be an agreement to refer the dispute to arbitrator under section 10A of the Act and it cannot be taken that the dispute relating to non-employment was given a quietus by the settlement entered into under Section 12(3) of the Act. Thus, it was held that the individual workmen whose non-employment was upheld by the Commissioner of Labour were entitled to question the said order. Therefore, it will be too late in the day for the appellant to contend that the 1st respondent-Union claimed before the learned Writ Court that they have a membership of 90 workmen but they cannot be a proper and necessary party to the dispute raised by the appellant concerning the service conditions of all employees of the 2nd respondent-Management. http://www.judis.nic.in 19 In fact, the 1st respondent-Union had filed an affidavit through its Treasury, U.Venkatesan in I.A.No.6 of 2019 which was a reply affidavit to the counter affidavit filed by the appellant-Union wherein they have specifically stated that seeking to implead themselves in the dispute is not to defeat the rights of the members of the appellant-Union, to place the settlement dated 21.01.2019 before the Tribunal.
27.Mr.Balan Haridas is right in his submission that if an award is passed and the same is sought to be implemented and if it is contrary to the settlement dated 21.01.2019 between the 1st respondent-Labour Union and the 2nd respondent-Management, it will result in a chaotic situation which is not conducive for industrial peace. Thus, the endeavour of the learned counsel is to state that a bad settlement is better than a good award.
28.We do not agree with the submission of Mr.V.Prakash, learned Senior Counsel that in the facts and circumstances of the case Section 18(3)(d) should be read harmoniously with Section 18(1) of the Act. The contention raised by the appellant that the award that may be passed by the Industrial Tribunal would not bind the members of the 1st respondent-Union is not tenable because, the members of the 1st http://www.judis.nic.in 20 respondent-Union were the members of the appellant-Union when the dispute was raised by them in the year 2013 and there cannot be dual service conditions among the workers of a same establishment and the question as to whether which union is the majority union and which is the minority union is not an issue in the present case and is of no relevance.
29.Furthermore, we hold that no prejudice will be caused to the appellant-Union, if the Industrial Tribunal passes a reasoned award after hearing both the appellant and the 1st respondent-Union and the 2nd respondent-Management.
30.The learned Single Bench was fully justified in its reasoning with regard to the contention of the appellant-Union that by impleading the 1st respondent-Union, the adjudication of the dispute would be delayed. If this plea is to be accepted, then the award passed without hearing the 1st respondent-Union would be made binding upon them in the light of the statutory provisions and therefore, the interpretation should lean in favour of culmination of a dispute before the Tribunal and not perpetuated dispute endlessly.
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31.Thus, for all the above reasons, we are of the considered view that the learned Single Bench was right in allowing the writ petition and directing the impleadment of the 1st respondent-Union as a party respondent to the industrial dispute raised by the appellant-Union.
32.In the result, the writ appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
(T.S.S., J.) (V.B.S., J.)
08.04.2019
Index : Yes
Speaking Order
abr
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T.S.Sivagnanam, J.
and
V.Bhavani Subbaroyan, J.
(abr)
To
1.The Secretary,
Roca Ranipet Labour Union,
Regn.No.1581/VLR,
No.13, A. Ambedkar Street,
Navalpur-632 401,
Vellore District.
2.The Management of Roca Bathroom
Products Private Limited,
11, Mahatma Gandhi Road,
Ranipet, Vellore District-632 401.
Pre-delivery Judgment made in
W.A.No.936 of 2019
08.04.2019
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23
WA.No.936 of 2019
T.S.SIVAGNANAM,J,
AND
V.BHAVANI SUBBAROYAN,J
Order of the Court was made by
T.S.SIVAGNANAM,J
After we pronounced the
judgment, Mr.V.Prakash, learned
Senior Counsel submits that the
learned Single Judge directed the
Labour Court to expedite the disposal
of the industrial dispute.
2. Considering the fact that the
industrial dispute is of the year 2013,
we direct the Labour Court to dispose
of the industrial dispute as
expeditiously as possible preferably
within a period of 45 days from the
date of receipt of a copy of this
judgment. This direction is issued
subject to the condition that the
parties cooperate with the Labour
Court for disposal.
(T.S.S.J.) (V.B.S.J.)
08.4.2019
Note : Issue order copy on 9.4.2019.
RS
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