Madras High Court
M/S.Indroyal Crafts Private Limited vs The State Of Tamil Nadu on 20 October, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/10/2011 CORAM THE HONOURABLE Mr.JUSTICE K.CHANDRU W.P.(MD)No.14279 of 2010 and W.P.(MD)No.14655 of 2010 and M.P.(MD)Nos.1,1,2 & 2 of 2010 W.P.(MD)No.14279 of 2010: M/s.Indroyal Crafts Private Limited, Rep.by its Director P.Vijayan, 6-11-35 Indroyal Nagar, Kambley, Ayikudy, Tenkasi 627 852. ... Petitioner Vs. 1.The State of Tamil Nadu, Rep.by the Secretary to Government, Labour Department, Fort St.George, Chennai. 2.The Deputy Commissioner of Labour, Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 3.The Assistant Commissioner of Labour, (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 4.The Labour Officer (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 5.Indroyal Thozhilalargal Nala Munnetra Sangam, A registered Society, Rep.by the President R.Sivan Pandi, Big Street, Keezhapada Kurichi, Keezhapuliyoor PO, Thenkasi Taluk. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records on the file of the 2nd respondent in A4/10301/2009, dated 16.02.2010 and quash the same and consequently directing the respondents 1 to 4 not to permit the 5th respondent their office bearers and agents to carry on Trade Union activities and participating in conciliation proceedings and other proceedings under the Industrial Dispute Act and other Labour Welfare Legislations with respect to the factory of the petitioners. W.P.(MD)No.14655 of 2010: M/s.Indroyal Crafts Private Limited, Rep.by its Director P.Vijayan, 6-11-40 Indroyal Nagar, Kambley, Ayikudy, Tenkasi 627 852. ... Petitioner Vs. 1.The State of Tamil Nadu, Rep.by the Secretary to Government, Labour Department, Fort St.George, Chennai. 2.The Deputy Commissioner of Labour, Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 3.The Assistant Commissioner of Labour, (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 4.The Labour Officer (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002. 5.Indroyal Thozhilalargal Nala Munnetra Sangam, A registered Society, Rep.by the President R.Sivan Pandi, Big Street, Keezhapada Kurichi, Keezhapuliyoor PO, Thenkasi Taluk. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records on the file of the 2nd respondent in A4/10302/2009, dated 12.02.2010/16.02.2010 and quash the same and consequently directing the respondents 1 to 4 not to permit the 5th respondent their office bearers and agents to carry on Trade Union activities and participating in conciliation proceedings and other proceedings under the Industrial Dispute Act and other Labour Welfare Legislations with respect to the factory of the petitioners. !For Petitioner ... Mr.M.Azeem ^For Respondents... Mr.M.Govindan, Spl.G.P. for R1 to R4 Mr.M.V.Venkataeshan for R5 :COMMON ORDER
W.P.(MD)No.14279 of 2010 came up for admission Mr.M.Azeem, learned counsel appearing for the petitioner stated that another Writ petition in W.P.(MD)No.14655 of 2010 filed by the sister's company namely, Ms.Indroyal Furniture Company Private Limited is also pending. Hence, that Writ petition was also directed to be posted along with this Writ petition and both parties were heard.
2.On behalf of the official respondents, the learned Special Government Pleader appears. On behalf of the contesting union namely, the 5th respondent, Mr.M.V.Venkataseshan, learned counsel appears.
3.In both the Writ petitions the challenge is made to a letter sent by the Deputy Commissioner of Labour, Tirunelveli namely, the 2nd respondent to the petitioners. The communication dated 16.02.2010 is the challenge in the first Writ petition and 12.02.2010 is the challenge in the second writ petition. Both the communications are identical, but, addressed to the two different petitioner companies.
4.By the said communications, the Deputy Commissioner of Labour, who is also a Registrar of Trade Union informed the petitioners that they have no right to interfere in the formal talk of Indroyal Workers Labour Progressive Federation (LPF). In both cases, the petitioners sent a letter dated 13.11.2009 objecting to the registration of the trade union by the 5th respondent. In their communication, they have stated that the 5th respondent was not registered under the Trade Unions Act but it was registered under the Societies Registration Act, 1860. Therefore, a union cannot be registered under the Societies Registration Act as it is illegal. If they make an application for registration under the Trade Unions Act, the authority should not act upon the said proposal. The attention of the Registrar of the Trade Union namely, the 2nd respondent was drawn to Section 14 of the Trade Unions Act. The authority informed the petitioners that though Section 14 prohibits registration of a union, if they are already covered by the Societies Registration Act, 1860, Tamil Nadu Cooperative Societies Act, 1912 or the Companies Act, 1956, it has not prohibited, such societies functioning when there was no illegality. The petitioners were not apprised of the correct legal position. It is also not required that a union should be registered for the purpose of raising an industrial dispute. Even an unregistered trade union can raise an industrial dispute.
5.It is also stated that the dispute need not be raised only by a registered trade union. Even the workman can either individually or collectively can raise an industrial dispute, without forming a trade union or be its members. The petitioners were politely informed that their action in interfering with the registration of a trade union, would amount to an "unfair labour practice" and the petitioners may be taken note of the same. After the receipt of the said communication, the petitioners sent a representation dated 03.08.2010 clarifying their stand. They also drew the attention of the Officer that the legal contentions raised by them was correct. But, however, with reference to the workers' right to raise a dispute, it can only be confined to the individuals. It is only a registered trade union, which can take up the case of workers. In this contest they referred to a judgment of the Supreme Court in Chairman, State Bank of India Vs. All Orissa State Bank Officers' Association and others reported in 2002(2) LLJ 562 = 2002(5) SCC 669. But it must be noted that the judgment was reversed in a review petition as reported in 2003(11) SCC 607.
6.It is also brought to the notice that the union had raised a dispute which was conciliated by him. The allegations that they are interfering with the right of the workers was incorrect and they do not intend commit any unfair labour practice. A further communication was also sent to the Commissioner of Labour at Chennai on 25.11.2009. Subsequently, they also filed an application for permission to close down the factory under Section 25-FFA of the Industrial Disputes Act. Since the activities of the industrial establishment run by the company is covered by Chapter V-B. The petitioners also made an application for seeking permission to close down the factory under Section 25-O. But the State Government by order in G.O.(D)No.74 Labour Employment Department, dated 25.01.2010 declined to grant permission as it was not being satisfied with the reasons adduced by the petitioners. The Government was of the view that more than 289 families of the workers will be put to suffering by such closure.
7.The conciliation talks was also continued with respect to the bonus dispute raised by the workmen. The management also complained to the State Government i.e., the 1st respondent by a communication dated 06.11.2010 stating that there was an illegal strike indulged by the workers. Hence, the Government should interfere and take action against those workers, who have gone on illegal strike and the person, who are instigating them.
8.In the conciliation proceedings initiated by the 2nd respondent regarding the demand for bonus, on noting one Jayaprakash, was allowed to participate, the management once again relied upon the judgment of the State Bank of India's case (cited supra) informed the Conciliation Officer that the union was not a registered union. The said Jayaprakash is not a worker in the factory and he was an outsider. It was at his instant once the strike was instigated. Therefore, they requested the Conciliation Officer not to permit the said Jayaprakash, an outsider to be part of the conciliation proceedings. The Conciliation Officer in the mean while, on realising the seriousness of the dispute and also on finding that there was a lockout and strike gave advice to both the parties, including suggesting payment of minimum bonus.
9.In the mean while, the said Jayaprakash, who is claiming to be the President of National Labour Organisation (NLO), Tamil Nadu and Advisor for the Indroyal Furniture Labour Progressive Federation, (the 5th respondent) stated that as per the Industrial Disputes Rules, 1958, the workers will form a general body and will elect an authorised representative. Appropriate documents will be furnished to the authority in support of their dispute. Even while these proceedings are pending, curiously, the petitioners have come forward to challenge the communications dated 16.02.2010 and 12.02.2010.
10.The real reason for challenging such communications was not disclosed. The learned counsel for the petitioner continuously harp on the theme that an unregistered trade union cannot raise a dispute. Therefore, at their instance, no dispute can be proceeded with by the Conciliation Officer. Their writing letters to the Deputy Commissioner, cannot be taken as an interference with the affairs of the union amounting to violation of unfair labour practice set out under Schedule V r/w Section 2(6)(a) of the Industrial Disputes Act, wherein commission of unfair labour practices have been made penal offence was prohibited by Section 25(T) and can be punished under Section 29-U of the Industrial Dispute Act.
11.The contention raised by the petitioner was found in the affidavit was that there is a legal prohibition for a union to raise a dispute. The 2nd respondent should not permit any outsider in a dispute of this nature. The finding that they have committed unfair labour practice was erroneous. It has to be seen whether the said contention merits attention and whether the writ petitions can be entertained by this Court.
12.The reliance placed upon by the petitioners in the judgment of the Supreme Court in State Bank of India (cited supra) has no relevance to the case on hand and that relates a recognition of a union and not with reference to any registration. The Supreme Court in that case held that merely because a union is registered but without any recognition cannot be allowed to represent either collective cause or individual cause of the workman. The petitioner cannot rely upon the said decision as it had been revised by the Supreme Court as noted earlier.
13.The 2nd objection made by the learned counsel for the petitioners is placed upon the judgment of the Supreme Court in B.Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and others reported in 2006(11) SCC 731. In that case the Supreme Court held that after the amendment to the Industrial Disputes Act and the introduction of Section 2(qq) the term "trade union" is defined to mean a trade union registered under the Trade Unions Act, 1926. Therefore, an unregistered union can take up the cause cannot held to be any more valid as held in B.Srinivasa Reddy case (cited supra). The Supreme Court held that if the trade union's registration is cancelled, the unregistered trade union or a union, which registration has been cancelled has no right whatsoever under the Industrial Disputes Act. Any right in terms of the Industrial Disputes Act was available only to a registered trade union in the light of the introduction of Section 2(qq) of the Industrial Disputes Act. But in that case the employees union filed a Quo warranto Writ petition against the continuance of the Managing Director of the Karnataka Urban Water Supply and Drainage Board. The matter was resisted including the locus standi of such union. In that contest, the Court the locus standi of the trade union before this Court as well as before the forum created under the Industrial Disputes Act.
14.In paragraph No.39 a passing of reference is made regarding the locus standi of the unregistered union and in order to distinguish the earlier case of the Supreme Case in Fertilizer Corporation Kamgar Union (Regd.) Vs. Union of India reported in 1981(1) SCC 568. The Supreme Court in paragraph 39 held as follows:
"39.The High Court, in our opinion, miserably failed and gravely erred in holding that respondents 1 and 2 have locus standi to question the appointment of the appellant in the light of the change of law that has been brought about by insertion of Section 2(aa) of the ID Act and having regard to the provisions of Chapter III of the Trade Unions Act, 1926. This Court, in many judgments, held that the Union has locus standi in the facts and circumstances of that case, however, cautioning that if a citizen is no more than a wayfarer or officious intervener without any interest or concern that what belongs to anyone of the 660 million people of this country - Fertilizer Corpn. Kamgar Union (Regd.) V. Union of India, the doors of the court will not ajar for him."
The Court held an unregistered trade union or whose registration was cancelled can have no right to file a quo warranto Writ petition. Further, the case itself was decided on the basis that the employee's association had approached the High Court with unclean hands. If anyone do not disclose frank and if they failed to do so and if any suppression of material fact their application was liable to be rejected and it was reason this petition was rejected.
15.In the present case, the omni bus prayer made in these two writ petitions in challenging the impugned communications and for a consequential direction to R1 to R4 not to permit the 5th respondent, their office bearers or agent to carry on the trade union activities and participating the conciliation proceedings and other proceedings under the Industrial Disputes Act and other labour welfare registration with respect to the factory of the petitioners cannot be granted by this Court. The communication which is in the form of an advise given by the 2nd respondent is not judicial reviewable. Hence, the latter part of the prayer is not maintainable. In the present case, it is the grievance of the petitioners that during the conciliation proceedings one Jayaprakash who is the President of National Labour Organisation claiming to be the Advisor of the union should not be allowed to be present before the Conciliation Officer.
16.Representation of parties before a Conciliation Officer as well as before a Court is set out under Section 36 of the ID Act. Under Section 36 the workers can be represented by any member of the executive or officer bearer of the registered trade union or any member of the executive of other officer bearer of society of a trade union. If the trade union referred to in clause A is affiliated where the worker is not a member of any trade union that any member of the executive or other office bearers of any trade union connected with or by any other workman employed in industry in which the worker is employed and authorised in such manner as may be prescribed.
17.Therefore, even in cases where the worker is not a member of any trade union under Section 36(i)(c) he can be represented any member of any other trade union or any other federation to which the trade union is affiliated to can be allowed to represent. Therefore, the said Jayaprakash claiming himself to be the President of the NLO which is a trade union federation, is also entitled to represent the workers if invited by the Conciliation Officer.
18.Further the Conciliation Officer in order to discharge the functions of a Conciliation Officer, is bound to investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he may thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. Therefore, it is within his power to allow any person to represent before him as the larger objective was to bring about industrial peace. If the petitioner management is not interested to sit along with the said Jayaprakash they can ask for a separate audience. After all a Conciliation Officer cannot enter into a settlement unless agreed to by the parties. If parties do not agree for a settlement, all that he can do was to send a failure report to the State Government under Section 12(4) of the ID Act. Even in cases where a particular union is not having a representative capacity, even that information can be furnished by him in his confidential report called as if 'B' report to the State Government. It will be taken note of by the State Government, ultimately, a reference was to be made under Section 10(1) of the ID Act. Therefore, in the absence of any legal or enforceable right on the part of the petitioners the present attempt to challenge a mere reply addressed to the management advisory then not to interfere with the affairs of union as otherwise it may amount to an untrade labour practice cannot be countenanced by this Court.
19.There are two other reasons to reject the case of the management. Under Section 11(4), the Conciliation Officer can even enforce the attention of any person for the purpose of verifying the correctness of the details and he has same powers as that of the Civil Court under the Code of Civil Procedure. By amendment made by the State under the Tamil Nadu Act 12/88, the power of the Conciliation Officer is further widen wherein he can also summon and enforce the appearance of any person and examine him on oath and therefore, it is open to the Conciliation Officer without any fetters to call any person for the purpose of talk. If for some reason, the petitioner is unable to sit or even share any common space, they can always go out from the conciliation meeting.
20.Under Section 18(3) (b) of the ID Act he can also summon parties who are not before the conciliation for the purpose of arriving a settlement under Section 12(3) r/w 18(3) so as to have binding effect on all others who are not a parties to the dispute. In the present case, as seen from the communications sent by the said Jayaprakash that he had promised the Conciliation Officer that the worker will convene a general body meeting and produced an authorization for the authorized representative to represent the grievance of the workers. Ultimately, it is for the Conciliation Officer to be satisfied with the representative character of anyone or any set of workers who are before him. He record such statements and inform accordingly to the State Government.
21.As of now the petitioner is not prejudiced in any manner. No civil right of the petitioners is affected either by the impugned communication or by the conduct of the Conciliation Officer. As and when any reference is made to an appropriate Industrial Tribunal/Labour Court, concerning the demands of the workmen, it is always open to the petitioner managements to raise all legal pleas including the locus standi of the 5th respondent in bringing an action before the Labour Court. Even it a reference is made under Section 10(1) that will not be the end of the mater. Ultimately the adjudicator will have to be satisfied with the competency of the parties who have raised the dispute.
22.Hence in the absence of any credible legal arguments, this Court is not inclined to entertain the Writ petition. The judgment cited in State Bank of India's case as well as the B.Srinivasa Reddy has no application with the case on hand. The Writ petitions stand dismissed. No costs. Consequently, connected M.Ps.are closed.
nbj To
1.The Secretary to Government, Labour Department, Fort St.George, Chennai.
2.The Deputy Commissioner of Labour, Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002.
3.The Assistant Commissioner of Labour, (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002.
4.The Labour Officer (Conciliation), Thiruvananthapuram Road, Palayamkottai, Tirunelveli 627 002.