Madras High Court
Tamil Nadu National Engineering ... vs Management Of T.I. Cycles Of India Ltd. ... on 2 December, 1991
ORDER
1. The short point that arises for consideration in this case is whether the fourth respondent herein has got jurisdiction to issue the communications on September 14, 1990 and January 29, 1991 and consequently direct respondents 4 to 7 not to act in accordance with the impugned communication dated January 29, 1991.
2. The facts leading to the filing of the writ petition are :
The first respondent company was started in the year 1949 and at that time it seems there were two unions viz. Tube Investment Employees Union and T.I. Cycles Employees Union, the earlier one representing the hourly rated workmen and the latter one representing the monthly rated workmen. When the factory was switched over to staggered off system in the year 1977, objections were raised by the Tube Investment Employees Union which resulted in suspension of operations for about 10 months. It seems that an agreement was signed between the first respondent and workmen represented by a Five-man Committee on October 14, 1978 and after the factory was re-opened, the workmen became members of the Tamil Nadu National Engineering Employees Union (hereinafter called as 'INTUC'). It seems that all agreements signed after the year 1978 have been with INTUC and the last of which was signed in August 1990. The Tube Investment Employees Union filed a writ petition No. 3408 of 1979 challenging the Award of the Industrial Tribunal in I.D. No. 13 of 1977. Though certain objections were raised by the Tube Investment Employees Union, the third respondent herein by filing an application, the Industrial Tribunal over-ruled those objections and the Award was passed in terms of the Settlement dated July 14, 1981 for a period of four years. It is alleged that on July 14, 1981, the third respondent herein sent a notice under Section 19(2) of the Industrial Disputes Act (hereinafter referred to as the 'Act') to the Management terminating the existing settlement. The petitioner Union, affiliated to Indian National Trade Union Congress submitted charter of demands dated May 28, 1981 and June 2, 1981, the former relating to manual workmen and the latter relating to staff. The first respondent was satisfied that the petitioner Union represents a large majority of workmen and after prolonged negotiations, two settlements were concluded between the management and the petitioner Union, one on July 16, 1982 and another on August 6, 1982. In the meantime, on receipt of the report of the Assistant Commissioner of Labour, the Government of Tamil Nadu passed G.O.Ms. No. 1049. Labour an Employment, dated May 24, 1982 declining to refer for adjudication the dispute raised by the third respondent Union, viz. the demand submitted on August 22, 1981 and thereafter the third respondent filed a writ petition W.P. No. 6192 of 1982 questioning the correctness and legality of the Government Order mentioned above. Simultaneously, the third respondent has submitted a representation to the Government of Tamil Nadu requesting to reconsider its order declining to make a reference and after reconsideration, the Government passed on order on February 2, 1983 stating that there are no grounds for reconsidering its earlier order. The writ petition filed by the Tube Investment Employees Union in W.P. No. 3408 of 1979 against the Award of the Industrial Tribunal in I.D. No. 13 of 1977 was dismissed by a learned single Judge of this Court and it was confirmed by a Division Bench of this Court in W.A. No. 1144 of 1983 dated April 10, 1989 holding that the terms of the settlement were fair and the Tribunal was justified in passing the Award in terms of the settlement dated October 10, 1978. It seems that 620 letters were received by the first respondent through the Deputy Commissioner of Labour the 6th respondent herein, purporting to have been signed by individual workman cancelling authorisation of each of them for the deduction of subscription to the petitioner Union herein. On verification, it was found that at least five are no longer in service including the case of death, 36 had not given any authorisation at all and subsequently 383 out 579 workmen purported to have signed such letters have informed the first respondent in writing that they continue to be members of the petitioner Union, requesting the first respondent to continue the deduction towards union subscription. The petitioner Union alleges that ever since 1969 the petitioner Union has been representing the substantial and majority of workmen employed in the first respondent and it is collective bargaining agent of the workmen of the first respondent Union. It is further stated that out of 1444 workmen working in the first respondent company 1082 are members of the petitioner Union, and they availed of the check-off facility, that is the union subscription payable by the member workmen are deducted from the wages of the workmen and remitted by the first respondent Management to the petitioner Union. It is alleged that ever since the political scene has been changed in the State of Tamil Nadu in 1989, the second respondent Union began to erroneously assert itself as an Union of the first respondent company, that it has been using its political influence and as an affiliate of Labour body called Labour Progressive Federation brought pressure on the 7th respondent to address a letter to the first respondent alleging that the first respondent should not make deduction as if certain workmen, whose names were found in the list appended thereto, had withdrawn their consent for making deduction. It seems that the petitioner wrote a letter to the 7th respondent on March 28, 1990 objecting to the said factual information. It is further alleged in the affidavit that as per bye-laws of the petitioner Union, any member before resigning the membership should give three months notice and none of its members totalling 1082 had ever given any such notice. It is also alleged in the affidavit that the move on the part of the 7th respondent without reference to the petitioner Union was politically motivated and that the move on the part of the 7th respondent would not result in industrial harmony.
3. While so, the fourth respondent pursuant to the strike notice issued by the second respondent dated August 2, 1990 purported to hold conciliatory talk on August 13, 1990. However, by that time the petitioner Union arrived at a settlement on August 18, 1990 with the first respondent under Section 18(1) of the Industrial Disputes Act, 1947. By that time, the second respondent had ventured to stage a stay-in strike and its members had indulged in violent activities. Taking unfair advantage of the situation, the 4th respondent purported to hold meetings for having conciliatory discussions on august 13, 23, September 5, 11 and 14, 1990. At those meetings, it is alleged that the petitioner Union objected to any move on the part of the fourth respondent of dividing a means to find out the strength of the Unions especially when there is a valid check-off system prevailing in the industry. It is further alleged in the affidavit that the findings of the strength of the Unions cannot be a subject matter of an industrial dispute over which any conciliatory discussion could be held, that any advice given by the fourth respondent based on such invalid conciliatory discussions is also equally invalid. It has been also pointed out in the affidavit that the petitioner Union categorically objected to the attempt on the part of the fourth respondent to device means to find out the strength of the Unions. It is further stated that in the affidavit that on September 14, 1990 under clause (2) of the proceedings, the fourth respondent purported to state as follows :
".... 2. The Commissioner of Labour will evolve a suitable device to find out which of the unions is commanding, how much of the membership, after a cooling period of three months from the date of this advice. During the cooling period, there should not be any industrial unrest and any problem of law and order ..."
It seems that the petitioner Union objected to a strike. However, within three months from September 14, 1990 the petitioner Union received a letter dated December 5, 1990 alleging as if the petitioner Union agreed to advise especially with regard to devising a means to find out the strength of the Unions, when factually the petitioner Union did not agree to do. On January 17, 1991, the petitioner Union wrote a letter stating that there was no necessity for devising means to determine the union strength and that 74.3% workers of the first respondent company are its members and that they are paying subscription to the Union under check-off system. It is made clear in the said letter that 2.94% of the workers of first respondent are members of the second respondent and the percentage of workers who are the members of the third respondent is in the region of 6.44%, 16.27% of the workers are not members of any union and that some of the workers out of 16.27% are probationers. It is further stated that the petitioner Union also pointed out that out of 1444 workers, 1308 workers have accepted and received the benefits under the long term settlement entered into between the petitioner Union and the first respondent under Section 18(1) of the Industrial Disputes Act, 1947. It is further stated that the alleged advice of the fourth respondent dated September 14, 1990 is arbitrary. It is also alleged in the affidavit that under the Trade Unions Act, an annual return should be furnished by a Registered Trade Union under form 'E', that items No. 12 to 17 to part A in form 'E' make it obligatory that the Union should furnish the number of members in a manner contemplated therein, and that therefore in order to verify the statutory position on the basis of a sort of claim stated by the second respondent Union, the petitioner Union requested the 7th respondent who is Additional Registrar of Trade Unions under Trade Unions Act to furnish the petitioner union certified copy of form 'E' for the year ended 1989 for Unions of the second and third respondents. It is further alleged in the affidavit that the petitioner Union wrote a letter on January 21, 1991 to the 7th respondent which was received by him on January 25, 1991 and without furnishing the required certified copies of Form 'E' relating to the second and third respondents on January 29, 1991, the fourth respondent purported to have issued the impugned notice. It is further alleged in the affidavit that the petitioner Union has recorded its objection right from September 14, 1990 and that the 4th respondent was incorrect in failing to take the same into consideration on some extraneous reasoning. It is further alleged that the petitioner Union asked for the certified copy of the 'E' form relating to the second and third respondents, the fourth respondent without complying with the statutory requirements proceeded with the appointment of the 5th respondent as verification officer. It is further stated that the industrial relationship on account of the petitioner Union is very harmonious and peaceful and under the guise of verification process, respondents 4 to 7 at the instance of the second respondent is seeking to undermine it. It is further stated in the affidavit that the action on the part of the fourth respondent is tainted with malafide and amounts to malice in law. It is further alleged in the affidavit that the withdrawal of check-off system and ascertainment of strength of unions operating in the first respondent were sought to be made subject matter of the conciliation proceedings and advice dated September 14, 1990, that it cannot form subject matter of industrial disputes as defined under Section 2(k) of the Industrial Disputes Act, 1947 and that the advice dated September 14, 1990 and the impugned communication dated January 29, 1991 are bad in law. It is further alleged in the affidavit that the fourth respondent has not even cared to comply with the request of the petitioner Union of furnish the statutory 'E' form as contemplated under Regulation 23(4) of the Tamil Nadu Regulations of Trade Unions Act. It is further stated that the fourth respondent has failed to note that none of the members of the petitioner Union who are in number 1082 even requested the petitioner Union to release them from check-off system, nor had they at any point of time as contemplated in its bye-laws submitted letter of resignation from the membership, that there is no necessity for devising the means to decide the strength of each union and that it has been done only because of the political motivation and pressure of the then ruling party. With these allegations, the petitioner has come up to this Court with the prayer to quash the communications dated September 14, 1990 and January 29, 1991 of the fourth respondent.
4. A counter affidavit has been filed by the first respondent management. After narrating the events which led to passing of the impugned communication, it is stated in the counter affidavit that the total number of workmen is 1410, that the total number covered under the check-off system is 1127 and the balance who are not covered under the check-off system is 283. It is further claimed in the counter affidavit that the petitioner Union has got majority of the employees belonging to the first respondent management and that on that basis only they had discussion with the said Union and that they entered into an amicable settlement and that itself is questioned by the respondents 2 and 3. It is further claimed in the counter affidavit that it is impossible for the company to maintain industrial harmony and that it will affect the interest of both the management and the workmen as well if the proposed course is adopted by the fourth respondent. It is further claimed in the counter affidavit that the check-off system is being operated for well over 30 years in the company, that they used to give the members' list to the respondent management and that the same was verified by the Authority constituted under various Labour enactments. The decision in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay (1990-II-LLJ-395) is referred to in the counter affidavit. It is further claimed that when the check-off system is working satisfactorily no other method of verification has been called for. The details of the workmen and who are all the members of the Union had been furnished thereto.
5. The second respondent, who is really the contesting respondent, has filed a counter affidavit stating that the petitioner Union was created by the management after the lock-out in the year 1978 and that between 1979 and 1980, 300 workmen left the petitioner Union and registered with the second respondent Union and affiliated it to the Labour Progressive Federation. It is further claimed in the counter affidavit that as the previous settlement with the management controlled Union was going to expire, the workers desiring the fair deal and negotiations through a genuine trade Union, that 621 of them left the petitioner Union, that they joined the second respondent Union between January-February 1990 and that in February 1990 the second respondent Union became the majority Union enjoying the confidence of 921 workmen out of a total of 1253 workmen. It is further claimed that the petitioner is a minority Union. The allegation made against the then ruling party is denied in the counter affidavit. It is further stated in the counter affidavit that the then ruling party had nothing to do with the dispute in question, and that it is not correct to state that any political influence was used by the second respondent as an affiliate of Labour Progressive Federation to bring any pressure on the 7th respondent, that in January and February 1990, 621 workers left the management controlled petitioner Union and that though individual workmen wrote to the management that subscription on account of the petitioner Union should not be deducted from their pay, the management continued to do so. It is further claimed in the counter affidavit that in spite of 621 workmen asking the management to stop deducting subscription on account of the management controlled petitioner Union, the first respondent management refused to heed the same, that when the respondent Union wrote a letter with a list of 621 workmen, a direction was issued by the Authority under the Payment of Wages Act to the management by the Deputy Commissioner of Labour not to indulge in such deduction by an order dated March 5, 1990, that the said order dated March 5, 1990 has not been challenged and that it became final. It is further claimed in the counter affidavit that when the conciliation was in progress being fully aware that the second respondent had the full support of overwhelming majority of the workmen, the first respondent entered into a settlement under Section 18(1) of the Industrial Disputes Act with petition Union, that in the interests of securing peace, the Commissioner of Labour called all parties for conciliation on September 14, 1990, that nobody took any objection to the said advice because all parties were fully aware that implementation of the said advice will be the only means for securing industrial peace and that under clause 2 of the advice accepted by all parties, it was resolved that the Commissioner of Labour after cooling of period of three months would evolve a suitable devise to ascertain which union commanded a majority membership. It is further claimed that the petitioner Union is a party to the said advice, that it did not challenge the said order, that it has come now belatedly to challenge the said order after its implementation by the first respondent, knowing fully well that the said advice was the sole means to secure industrial peace having kept quiet between September 14, 1990 and that when the advice was implemented by all parties, the petitioner Union is estopped from assailing the said order. It is further claimed that the writ petition suffers from laches. It is also stated that as per the bye-laws of the petitioner union, the moment the subscription is ceased to be paid the person will be considered a non-member. It is further claimed in the counter affidavit that the membership of a Union is crucial to determine the representative character of a trade union, that under Section 12(2) of the Act, the Conciliation Officer for the purpose of bringing about settlement of a dispute and all matters affecting the merits and the right settlement thereof and is empowered to investigate the dispute as he thinks fit for the purpose of inducing parties to come to a fair and amicable settlement of the dispute. It is further claimed that the strength of the Union in an establishment would be a persuading factor in resolving the dispute and that it is incidental power of the Conciliation Officer under Section 12(2) of the Act and that it is that power that has been exercised by the Commissioner of Labour in his capacity as the Conciliation Officer. It is further stated that unless it is acceptable to the majority of the workmen it will be a very germane issue in any conciliation proceedings to find out which union commands the majority membership, that the strength of a Union will be a relevant matter relating to an industrial dispute, and that an unauthorised deduction from wages on account of the union propped up by the management with great respect is an industrial dispute. It is further claimed in the counter affidavit that allegations that the petitioner Union had any objections to the advice of the Commissioner of Labour on September 14, 1990 and all parties to the said advice abided by it to preserve industrial peace are denied. It is further stated that Form 'E' for each calendar year is from January to December and the relevant 'E' Form for the year when those industrial disputes have arisen is the calendar year between January 1990 to December 1990 and that the same is to be filed in March 1991 which the second respondent Union is doing. It is further claimed in the counter affidavit that the act of verification of membership is not a judicial function, that it is an administrative function and that the allegations made by the petitioner are all vague.
6. The third respondent Union has filed a counter affidavit stating that the third respondent Union does not know as to under what provision of law the verification of membership has been ordered and that its purpose and aims are not known to it and that however it is ready and willing to participate in any such verification. In view of such statement, I do not think it necessary for me to detail out the averments contained in the counter affidavit by the third respondent except stating that the Special Leave Petition is pending before the Supreme Court against the order of the Division Bench of this Court cited supra, which is against the settlement arrived at in the year 1978.
7. A common counter affidavit has been filed by respondents 4 to 7. It is stated in the counter affidavit that the second respondent issued a strike notice on August 2, 1990 stating that it would go on strike pressing certain demands. It is further claimed in the counter affidavit that the action of the first respondent in deducting subscription in favour of the petitioner Union was opposed, that the 6th respondent held conciliatory talks on August 13, 1990 and he advised the trade union not to go on strike and to await the outcome of the discussion, that in the meanwhile, the petitioner Union and the first respondent Management entered into a settlement under Section 18(1) of the Act on general demands when the conciliation talks were in progress, that the claim that the second respondent enjoys majority has been disputed by the petitioner Union and the first respondent management and as such this issue was taken up by the fourth respondent and in the course of conciliatory talks held on September 14, 1990 an advice was issued to him. In terms of the advice, the 4th respondent held further discussion on December 3, 1990 with the first respondent and Unions and issued an advice to the parties to maintain status quo in all respects until a decision is taken about the strength of the members in the Union. Following that, on January 29, 1991 the fourth respondent issued an advice appointing the 5th respondent as verification officer for verifying the membership of the Unions and to find which of the Unions is commanding majority and what is the membership. In the counter affidavit, the allegation that Labour Progressive Federation brought pressure on the 7th respondent to address a letter is denied. It is claimed that as an Authority under the Payment of Wages Act, the 7th respondent addressed to the first respondent by a letter dated March 28, 1990 advising not to deduct Union subscription from the wages, who have not given authorisation for such deductions, that the 7th respondent did not show any special favour to any Trade Union and that it only discharged its official duties within his powers. It is further claimed in the counter affidavit that when the strike notice was issued by the second respondent proposing to enter into strike pressing certain general demands, the matter was heard by the 7th respondent on August 13, 1990 and posted the matter for hearing on August 23, 1990 before the fourth respondent. In the meanwhile, the conciliation proceeding was in progress, the petitioner Union and the respondent management entered into a settlement under Section 18(1) of the Act on August 18, 1990 on general demands and that however the second respondent is agitating still over its demands. The matter was further discussed by the fourth respondent on August 23, 30, September 5, 11 and finally September 14, 1990 and all the parties were invited to the discussion, that the second respondent issued a strike notice on various demands, that conciliation was initiated on the issue, that when the problem was developing into a law and order problem, the conciliation officer was duty bound to intervene in the matter, that it became necessary to verify the membership of a union and for that purpose he is empowered or verify the records and do all such other matters as he thinks fit to settle the matter amicably under Section 12(2) of the Act. It is pointed out in the counter affidavit that though the petitioner union objected to the move of devising means to find out the strength of the Unions, it did not come out with objections to the advice and kept quiet until the issue was again discussed to work out the modalities before the 4th respondent on December 3, 1990, after a lapse of nearly three months. It is further claimed in the counter affidavit that even the discussions held on December 3, 1990 the petitioner Union has agreed for verification by secret ballot method, that another advice was issued on December 5, 1990 requesting the parties to maintain status quo as per the advice dated September 1, 1990 in the establishment, that the matter was further discussed with the parties on December 31, 1990 and again on January 17, 1991, that the petitioner Union at the meeting on December 31, 1990 objected to the move of conducting election, that the procedure under Code of Discipline can be adopted and that on January 17, 1991, the petitioner Union stated that it is the discretion of the department to verify the membership through Code of Discipline and that the same could be done either by the department on its own or on the approach of the second respondent. It is further claimed in the counter affidavit that when there are ways and means for deciding the issue and when there is a conflicting version on the issue of majority of a union and when the department has been approached by one of the Unions, the department has a duty to find a way out to decide the questions and restore normalcy. The decision in Automobile Products of India v. Association of Engineering Workers, Bombay, (1990-II-LLJ-395) is referred to. In this case, when two Unions claim to have majority support, it was thought better to adopt physical verification method and accordingly orders were issued for undertaking physical verification by the 5th respondent. It is further claimed that when the unions were claiming that they have majority, the matter was referred to verification claiming that the matter has to be decided only after a thorough verification and not blindly based on the statement of any one of the unions. It is further claimed in the counter affidavit that as per Regulation 23(2) the document may be inspected by any person, and that the said provision does not require issue of copies to any person and as such the request of the union was not complied with. It is further claimed in the counter affidavit that as per Regulation 23(4) copies of any of the documents specified in clause (2) and the certificate of registration of trade union may be obtained from the respondent on payment of copying charges at such rates as may be fixed by him in that behalf. It is further claimed in the counter affidavit that the petitioner Union received the copy of advice dated September 14, 1990 without any protest or reservation, and that the fact that it had chosen to remain silent all along on the advice established that the Union had implicitly agreed to the same and its contrary averments made subsequently is purely an afterthought. It is further claimed in the counter affidavit that the communication is neither a settlement nor an agreement to have any statutory backing, and that the matter has not been taken up as a dispute but talks were held to solve the problem on the issue of which union is having majority, and the action is taken for maintaining peace. It is further claimed in the counter affidavit that the petitioner Union may be directed to co-operative with respondents 4 to 7 for completing the verification in the interest of industrial peace and amity being restored in the first respondent establishment.
8. Mr. Venkatraman, appearing for M/s. Aiyar and Dolia, contends that respondents have no jurisdiction to issue the communications, which are impugned in this writ petition. According to the learned counsel for the petitioner Union there cannot be any conciliation proceedings as to find out whether 'A' Union or 'B' Union has got majority of members. According to the learned counsel this cannot be treated as industrial dispute at all under Section 2(k) of the Industrial Disputes Act and the representative character of Union cannot be a subject matter of an industrial dispute, so as to find out whether it is a majority union or a minority union. The learned counsel refers to the decision in State Bank's Staff Union v. The State Bank of India (1991-I-LLJ-163). The learned counsel further contends that for verification, the petitioner Union wanted the membership register of the second respondent Union and that it was not given to it. According to the learned counsel for the petitioner Union, when the petitioner Union wanted Form 'E' under Trade Union Act to verify the members of the second respondent Union, no copy was furnished to it and that constitutes violation of the principles of natural justice. The learned counsel further points out that the motive is politically motivated by the then party in power to cause injury to industrial peace and harmony to the country, and that the stand taken by the respondents is not correct. The learned counsel further contends that the petitioner Union has been objecting from the very beginning and that it is not correct to say that the petitioner Union has acquiesced or accepted to the suggestions made by the respondents. According to the learned counsel it is very clear from the correspondence produced before this Court that the petitioner Union has been objecting to the method of verifying membership. The learned counsel further contends that check-off system has been successfully working and that if verification is needed it can be done either from the list of candidates or from Form 'E' under the Trade Union Act. According to the learned counsel appearing for the petitioner Union there is no necessity for adopting the physical verification method. The sum and substance of the learned counsel for the petitioner is that in a conciliation proceedings, the question of membership cannot be an issue and as such the respondents have no jurisdiction to proceed further issuing impugned communications. The learned counsel further contends that the entire action of the respondents has been tainted with mala fides and that it was taken at the instance of the party in power. The learned counsel further contends that if at all anything can be done, it can be done only under the Code of Discipline which provides for such contingency arrived at Appendix IV, a copy of which has been produced before me.
9. Mr. V. Prakash, the learned counsel appearing for the second respondent Union, who is the contesting respondent, contends that when a charter of demand is given to the conciliation officer, it is the duty of conciliation officer to find out as to which Union's request has to be accepted. According to the learned counsel appearing for the second respondent Union, it is open to the Conciliation Officer to find out which of the Unions has got majority of members. Referring to Section 12(2)(f) of the Industrial Disputes Act, the learned counsel contends that the Conciliation Officer can adopt the procedure of verification method also. The learned Counsel further contends that the petitioner Union is not aggrieved by impugned communications and that in a settlement under Section 12 of the Act, the Conciliation Officer has to find out which of the Unions is a majority and proper union. According to the learned counsel, the Conciliation Officer has to find out the method which has been resolved on September 14, 1990, that the petitioner has not challenged the said order and as such the petitioner should not be allowed to challenge the communication dated January 21, 1991. The learned counsel refers to Sections 10, 12 and 19 of the Industrial Disputes Act, and contends that a reading of those sections shows that the majority of the Union is an important factor to be considered for any issue. He further contends that when no machinery is provided in the Act to find out majority it has to be taken that under Section 12(2) of the Act, the Conciliation Officer has got sufficient power. The learned counsel further states that the impugned orders are purely administrative and that this Court should not interfere with the same.
10. Mr. Fenn Walter, the learned counsel appearing for the third respondent, narrated the history of the Unions with the first respondent management. With regard to the proposal of the fourth respondent, the learned counsel contends that there is no power vested in the Act and that if such power is given to the fourth respondent, they will misuse the power.
11. I have considered the arguments of Mr. Venkatraman, the learned counsel for the petitioner Union, Mr. V. Prakash, the learned counsel appearing for the second respondent Union, Mr. Fenn Walter, the learned counsel appearing for the third respondent Union and of Mr. V. Subbarayan, the learned counsel appearing for respondents 4 to 7. I have perused the files produced before me. The short question that arises for consideration in this case is whether the Conciliation Officer has got the power to verify physically the membership of a Union, so as to say, whether the Conciliation Officer has got the power to find out as to whether 'A' Union has got the majority or 'B' Union has got the majority, when there are two unions and both claim that they have majority of members. So, the first question to be considered is with regard to the power of the Conciliation Officer under Industrial Disputes Act, 1947. The duties of the Conciliation Officer are set out under Section 12 of the Industrial Disputes Act. Chapter IV of the Industrial Disputes Act provides procedure, powers and duties of authorities. Under sub-section (2) of Section 11 of the Act, the Conciliation Officer shall, for the purpose of inquiry into an existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates. As per the sub-section (3) of Section 11 of the Act, the Conciliation Officer shall have the same powers to enforce the attendance of any person and examining him on oath and to compel the production of documents and material objects and to issue commissions for the examination of witnesses. That Section 11 of the Act empowers the conciliation Officer with the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of certain matters. Section 12 of the Act provides for duties of Conciliation Officers and for the purpose of the present case, it is enough to refer to sub-sections (1) and (2) of Section 12 of the Act, which read as follows :
"..... (1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or when the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner ....
(2) The Conciliation Officer shall for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute ..."
It is also necessary to refer to Section 18 of the Act which refers to persons on whom settlements and awards are binding. Sub-section (3) of Section 18 reads as follows :
".... A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3-A) of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on ...
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment, or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part ....."
A reading of sub-section (2) of Section 12 of the Act shows that the Conciliation Officer, for the purpose of bringing about a settlement of the dispute may investigate the dispute and all matters affecting the merit and right of the settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. I am not able to see that the Conciliation Officer has been empowered to verify the membership of the Union as contended by Mr. V. Prakash, the learned Counsel appearing for the second respondent. I am of the view that the argument of Mr. V. Prakash, the learned Counsel for the third respondent Union that the words 'may do all such things as he thinks fit' have to be given a wide interpretation that the Conciliation Officer is empowered to verify physically the membership of the Association, is not correct. In my view, the Conciliation Officer can do all such things for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute and nothing more. In my view, no machinery is given in the Industrial Disputes Act to verify the membership of an association. As rightly contended by Mr. Venkatraman, the learned Counsel for the petitioner Union, the correct way of calculating the membership is by 'check-off' system and by Form 'E' returns given by members under the Trade Unions Act. So, if the Conciliation Officer is interested in finding out the majority of the membership of the Unions, it is for him to call for the records under the 'check-off' system and on the basis of Form 'E' returns filed by each of the Unions. In this case, even as stated by the second respondent, for 'E' have to be filed in the month of March 1991. As such, it is easy for the Conciliation Officer to find out from Form 'E' and also by 'check-off' system to find out the membership of each of the Union. In my view, as it stands, there are two ways available to find out the membership of a Union. A copy of 'Code of Discipline' has been produced before me and therefrom I am not able to see any provision empowering the Conciliation Officer to adopt such a method of physical verification of membership. In State Bank's Staff Union v. The State Bank of India (supra) a Division Bench of this Court has held that the industrial dispute should satisfy all the three parts mentioned in Section 2(k) of the Act. When examining the issue whether there was conciliation proceedings within the meaning of the Act, the Division Bench in the above mentioned case has held at (p. 169) as follows :
"... Such proceeding certainly must relate to mediation in and promotion of settlement of industrial dispute. Though the expressions used are 'any proceeding' in Section 2(e) of the Act, such proceeding could only relate to an industrial dispute. This we say applying the well known maxim that 'the words of statute when there is a doubt about their meaning, are to be understood in the manner in which they best harmonise with the subject of the enactment and the object which the legislature has in view; their meaning is found not so much in strictly grammatical and etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used and the object to be attained'. (Vide Maxwell on Interpretation of Statutes, Twelfth Edition). The first and the foremost question that calls the attention of the Court is what is an industrial dispute. Even this is a matter of a statutory definition under Section 2(k) of the Act, which runs as follows : '2 (k) : 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person ...." The definition of an industrial dispute can be divided into three parts.
(1) there must be a dispute or difference;
(2) the dispute or difference must be between employers and employers or between employers and workmen or between workmen and workmen (3) the dispute or difference must be connected with the employment or non-employment or the terms of employment or with conditions of labour of any person.
The first part refers to the factum of a real dispute or difference. The second part refers to the parties to the dispute. The third relates to the subject matter of the dispute and that subject matter should relate to any one of two matters, namely, employment or non-employment, and terms of employment or conditions of labour of any person. It is not possible to conceive of an industrial dispute within the meaning of the Act unless and until all the three conditions stand satisfied ..."
The Division Bench has further observed at p. 171 as follows :
"... The proposition relating to conciliation proceedings as we could glean from the provisions of the Act, could be summed up as follows : The Conciliation Officer is appointed and charged with the duty of mediating in and promoting the settlement of industrial disputes. Conciliation proceedings could mean only such proceedings held by a Conciliation Officer, and nothing else. It is not each and every dispute of whatever nature it be, that could be the subject matter of conciliation proceedings. The dispute must necessarily be an industrial dispute as defined by the Act. There could be very many ideological disputes or differences over very many issues between the persons enumerated in Section 2(k), but they cannot get elevated to or get the legal colour of an industrial dispute unless those disputes or differences relate to and are connected with, the employment or non-employment or the terms of employment or the conditions of labour of any person ...."
If the abovementioned dicta is applied to the facts and circumstances of the case on hand, I am of the view that the impugned communications have no legal sanctity behind them. I am not able to agree with the argument of the learned counsel appearing for the second respondent simply because the orders are of administrative nature, this Court should not interfere with the same. It is settled law that when the impugned communications are administrative in nature and without jurisdiction, this Court can interfere with under Article 226 of the Constitution of India. This is a typical case where communications were sent without jurisdiction. Surely, the very membership of an association cannot be questioned in an industrial dispute. As pointed out by the Division Bench of this Court in the abovementioned case, in this case also, neither side says that there was a dispute relating to employment or non-employment of any person. As such, I am fully satisfied that the impugned communications will not stand and they have to be set aside.
12. The only course even accepted by the learned Counsel appearing for the third respondent is Code of Discipline. How far it can be implemented is a different matter. The Supreme Court had an occasion to go into the Code of Discipline in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay (1990-II-LLJ-395 at 401) and observed as follows :
"It is its representative character determined by such membership that gives a union a right to make the application for recognition. However, overwhelming, therefore, the vote may be in its favour in a ballot, it will not entitle a Union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act ..."
So in my view, the only way open to the Conciliation Officer to find out whether a particular Union is a majority union or a minority union is only on the basis of records or under the Code of Discipline. It has been held that a secret ballot is not a method. So, I am in entire agreement with the argument of Mr. Venkatraman that respondents 1 to 3 have exceeded their jurisdiction. Further I am not able to accept whether the petitioner Union has accepted or acquiesced the suggestion given by respondents 1 to 3 in the year 1990. A perusal of the file produced before me clearly shows that right from the beginning, the petitioner Union has objected that it is not accepting any particular method. Even if the petitioner accepted a particular method, it is well settled that no person can confer a jurisdiction on an authority, and such an authority has no jurisdiction under a particular enactment to perform a particular act. So, the argument based on acquiescence also fails, even if it is assumed that the petitioner Union kept quiet. I do not think that the petitioner's argument has to be turned down on the ground of laches. Rightly the petitioner Union has taken the issue at the appropriate time when the communication has been issued for physical verification of membership. Simply because no method is prescribed under the Act, I am not able to accept the argument of the learned Counsel appearing for the second respondent Union, that the method adopted by the Conciliation Officer has to be construed as a correct method to meet such a contingency. If there is no provision under the Act, it cannot be treated as an industrial dispute under the four corners of the Act. That is why, that has not been found a place in the enactment. Even to maintain industrial peace and industrial harmony, the authorities have to perform their duties as provided under the Act, and they cannot exceed their powers on a pretext that day are acting in the interests of maintaining industrial harmony and peace.
13. I have gone through the file produced before me. Though there is a note in the file that the petitioner Union has accepted, I do not think any signature has been obtained from the representatives of the petitioner Union in that portion.
14. As regards mala fide, I could see only vague allegations are made in the affidavit filed in support of the petition against the second respondent Union and other respondents, that the entire action is politically motivated. It is well settled that though allegations are made that the action of the respondent is tainted with mala fide, it cannot be accepted very easily, unless there is any cogent evidence or proper materials to act upon those allegations. It has been repeatedly held by the Supreme Court that vague allegations are not enough to interfere under Article 226 of the Constitution of India. I am satisfied that the allegations made as if the entire action taken by the respondents 1 to 3 is tainted with mala fide cannot be accepted.
15. For the foregoing reasons, the impugned communications of the respondent 1 to 3 are set aside and the writ petition will stand allowed. However, there will be no order as to costs.