Calcutta High Court
All India Uco Bank Staff Federation & Anr vs Uco Bank & Anr on 4 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P. 1204 of 2013
All India UCO Bank Staff Federation & Anr.
Versus
Uco Bank & Anr.
For the petitioners : Mr. Ajay Debnath,
For the respondents : Mr. Sabyasachi Choudhury,
Mr. Rajarshi Dutta, Mr. Sourjya Roy Heard on : 28.01.2014, 31.01.2014, 07.02.2014, 17.02.2014, 18.02.2014, 25.02.2014 Judgment on : 4th March, 2014 Soumen Sen, J.:- This writ petition has been filed at the instance of a miniscule registered trade union representing 1.63 per cent of the total strength of the workman in the employment of the bank.
The exclusion of the union from negotiation and other matters in the Industrial Relation Policy for Workmen staff framed by the bank is the subject-matter of challenge in this writ petition.
This writ petition was heard along with W.P. No.464 of 2013 in which the majority union has challenged the same Industrial Relation Policy on the limited ground that the said policy in so far as it excludes other union, save and except, the majority union during negotiation in relation to policy matters at the apex level is bad in law. The said issue was considered and I have delivered a judgment on 4th March, 2014 by which I have upheld Industrial Relation Policy and dismissed the writ petition.
The bone of contention in the writ petition appears to be that irrespective of the strength of the members of the registered trade union, once a trade union has been registered and recognized by the respondent bank, it carries with it the right to negotiate and such union cannot be left out during negotiation on all matters including policy matters.
In my judgment being W.P. 464 o 2013, I have dealt with this aspect of the matter and held that there is no statutory right given to a union to demand negotiation irrespective of their strength. Moreover, I have analyzed the said policy and held that the said policy does not suffer from arbitrariness. In fact, the learned Counsel representing the majority union in the other writ petition has also argued that the recognition includes the right to negotiation and unless the recognized unions are allowed to participate during negotiation the very purpose and object of Trade Union Act would be frustrated. This argument I have rejected in the said judgment and adopting the same reason here for not agreeing to such submission.
The other issue raised in the writ petition is that the said policy would snatch away the right of collective bargaining of a trade union. This aspect of the matter has also been elaborately discussed in W.P. 464 of 2013 and I have held that the said argument is not tenable. The two other points which have been argued and canvassed in this writ petition appears to be that the West Bengal Amendment to Section 28 of the Trade Union Act and a judgement reported in 1989 (1) CHN 95 (United Commercial Bank Officers' Congress).
United Commercial Bank (supra) was cited to show that in matters relating to Industrial Relation Policy, the bank cannot discriminate between the unions irrespective of their strength. This was because of the different percentages of membership as eligibility criterion mentioned in the said policy in respect of different matters concerning workmen of the bank.
In United Commercial Bank (supra) the issue before the learned Single Judge was whether the Promotional Policy Agreement 1987 includes elements of ad hocism and arbitrariness. The other important issue appears to be that whether the writ petitioner should have been consulted before the agreement was reached by and between the bank authorities and the other associations. On examination of facts and the relevant provisions including Regulation 17 of the Service Regulations which give certain guidelines, it was found that the bank authorities held consultation with two other unions and have arbitrarily left out the other union. The learned Single Judge held that there is no duty cast upon the bank authorities to consult with the other two unions but once the consultation was allowed to be held the duty is cast upon the bank authorities to consult the petitioner or in other words it requires the bank authorities to supply sufficient information to the writ petitioner or those who are not being consulted for the purpose of enabling them to make their effective suggestions or comments or sufficient opportunity of having their say in the matter. It was found that the relaxation shown to services in rural and some urban areas have been done in an ad hoc manner and there was no material before the Court to show that the facts and figures furnished have been duly checked and verified. It was further held that the element of arbitrariness by reason of absence of guidelines cannot be excluded. It was on such examination of record and analysis of facts, the Hon'ble Court found that there was a discrimination and the bank had acted arbitrarily in refusing to consult the other union. The bank preferred an appeal against the said judgment being F.M.A.T.2719 of 1988 (UCO Bank Vs. UCO Bank Officers' Congress). At the admission stage it appears that the Hon'ble Division Bench on 17th August, 1988 stayed the operation of the order appealed from. The bank administration was permitted to implement the revised promotion policy on the express condition to inform all the officers of the bank to be promoted under such policy that such promotion has been given only tentatively and the same would ultimately abide by the result of the appeal. In granting stay, it appears that the Hon'ble Division Bench had accepted the argument made by Mr. Saktinath Mukherjee on behalf of the bank that in service jurisprudence there cannot be any service rule which would satisfy each and every employee when there are a large number of employees and if the management have taken steps to evolve a promotion policy by making broad consultation with the representatives of the two unions representing more than 90% of the bank officers and if the consensus so reached is considered and accepted by the Board in accordance with the Regulation 17 it cannot be reasonably contended that such policies are arbitrary and irrational otherwise the majority of the officers should not have accepted the same.
The majority union is representing a large number of workforce and it shall be presumed that such union would act fairly and for the benefit of the workmen at large irrespective of their affiliation. It is the allegiance of the large number of workmen to a particular union which gives it the character as a majority union. That the majority would not act in interest of the workmen in absence of any mala fide cannot be accepted. It is not being alleged by the petitioner that the majority union would act against the interest of the petitioners or its members. In any event as has been observed in Chairman, SBI & Anr. Vs. All Orissa State Bank Officers' Association and others reported in 2002 (5) SCC 669, the procedure to consult the majority union would help in maintaining industrial peace and smooth function of the establishment. Moreover, in service jurisprudence there cannot be any service rule which would satisfy each and every employee (Reserve Bank of India Vs. C.N. Sahasranaman & Ors.; AIR 1986 SC 1830).
The selection of percentage for consultation/negotiation at different levels and stages as indicated in the policy cannot be said to be arbitrary and discriminatory. It is absurd to suggest that all and sundry is required to be heard in all matters including policy matters. If such argument is accepted then the bank would not be able to function at all. The decision of the bank to exclude all the unions except the majority union for negotiation at the apex level on policy matters appears to be well-conceived inasmuch as such policies are periodically reviewed. The policy has also taken due care of individual workman and it provides a mechanism for redressal of his/her grievance.
The other argument based on collective bargaining by reference to Chapter III-A, West Bengal Amendment regarding recognition of trade unions as sole bargaining agent appears to be misconceived. In the first place, the petitioner has not applied for recognition as a sole bargaining agent. Secondly the said amended provisions are not applicable in the instant case. The petitioner has failed to disclose any document to show that the petitioner has been recognized as a bargaining agent. Moreover, in Hotel Hindusthan International Employee's & Workers' Union Vs. State of West Bengal & Ors. reported in 2006 (4) CHN 188 it was held that that the said provision has no application to Hotel Hindusthan International. It was held that Hotel Hindusthan International cannot be regarded as an industrial establishment within the meaning of Rule 2(g) of the West Bengal Trade Unions Rules, 1998, as it does not satisfy the requirement of the Explanation to Section 25A of the Industrial Disputes Act. The concept of industry and an industrial establishment are not synonymous. If the concept of industry and industrial establishment are synonymous, then those two expressions would not have been defined differently in the Act as well as in the rules framed thereunder. The definitions given to industry as well as industrial establishment in the Act and the rules thereunder make it clear that those two concepts are different from each other. Thus, when the application of Chapter IIIA of the said Act has not been extended to the industry explicitly by incorporating industry in the said provision, this Court cannot extend the application of Chapter IIIA to Hotel Hindusthan International which is not an industrial establishment within the meaning of Rule 2(g) of the said rules, though the said hotel is an industry within the meaning of Section 2(aa) of the said Act.
The recognition is for an industrial establishment within the meaning of Rule 2(g) of the West Bengal Trade Unions Rules, 1998, and the bank is not coming within the purview of the Act as it does not satisfy the requirement of the Explanation to Section 25A of th Industrial Disputes Act. Moreover, the said policy is to operate on all India basis. The Hotel Hindusthan (supra) was upheld in 2008 (4) CHN 867 (Hotel Hindusthan International Karmachari Union V. Hotel Hindusthan International). The Hon'ble Division Bench held:-
"On a combined reading of the aforesaid provisions if we take the definition to section 2(ka) of the said Act of 1947 "hotel" would certainly come within the meaning of "industrial establishment".
We, however, find that section 28A of the said Act of 1926 clearly stipulates that an "industrial establishment" means an "industrial establishment" within the meaning of section 25A of the said Act of 1947. Under section 25A three categories are prescribed i.e. factory, mines and plantation.
With regard to the "class of industry" State Government has been empowered to notify a "class of industry" in a local area. Admittedly no such notification has been issued by the State." The respondent bank does not fall in any of the above three categories.
The reference to the said Chapter is completely misplaced. In view of the aforesaid and for the reasons elaborately discussed in W.P.464 of 2013, this application also fails. The writ application, accordingly, stands dismissed. There shall be no order as to costs.
The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)