Karnataka High Court
The Hind Mazdoor Kisan Panchayat, ... vs The Commissioner Of Labour And ... on 25 July, 2001
Equivalent citations: ILR2001KAR5161, 2002(4)KARLJ359, 2001 LAB. I. C. 3260, 2001 AIR - KANT. H. C. R. 2631 (2002) 4 KANT LJ 359, (2002) 4 KANT LJ 359
ORDER Chandrashekaraiah, J.
1. These writ petitions are by the two unions challenging the order of the first respondent-Commissioner dated 21-5-2001 and for a direction to the first respondent and the second respondent-Returning Officer to conduct the referendum through secret ballot among the permanent employees of the third respondent's Management as per Annexure-G and also for other reliefs which this Court deems fit to grant.
2. The petitioners and respondents 4 to 7 are the registered unions under the Trade Unions Act, 1926. In the year 1995, there was a referendum in which the first petitioner-union was elected for the purpose of collective bargaining with the third respondent-industry. The term as per the election held in the year 1995 is for a period of three years. After the expiry of the term, the first respondent-Commissioner passed an order directing to hold the referendum for the purpose of electing one union from among the six unions to represent the interest of the workers of the third respondent-industry. From this order only, the unions such as the petitioners and the respondents 4 to 7 were considered as a recognised union for the purpose of participating in the referendum. In the said order, the first respondent-Commissioner had appointed the second respondent as the Returning Officer to hold the secret ballot from among the workers of the third respondent-industry to elect an union to be its representative for the purpose of collective bargaining with the management. Pursuant to this, the second respondent issued the calendar of events as per Annexure-C. However, the first respondent-Commissioner directed the Returning Officer not to proceed with the election pursuant to the calendar of events as there are some representations filed by the union representing the workers appointed under a contract by an independent contractor.
3. The first respondent-Commissioner on the representation made by the respondents 8 and 9, passed an order dated 11-5-2001 holding that the persons who are appointed as workers under a contract by an independent contractor have no right to participate in the referendum to be held for the purpose of electing the union to represent the regular workers in the third respondent-industry and to confine the election through secret ballot only to the unions which are recognised by the third respondent-industry for the purpose of referendum. Thereafter, the Commissioner, first respondent again by modifying the earlier order dated 11-5-2001 passed an order on 21-5-2001 holding that all eight trade unions functioning in the third respondent-industry are eligible to participate in the referendum. This order is under challenge in these writ petitions.
4. Sri Leelakrishnan, learned Counsel appearing for the petitioners, submit that the Returning Officer having issued the calendar of events to hold an election from among the six unions ought not to have refrained from holding the election only because there was a direction issued by the Commissioner not to proceed with the holding of referendum. Further, he submits that the first respondent-Commissioner having directed the Returning Officer to proceed with the referendum confining the referendum to six unions ought not to have issued direction to the Returning Officer not to proceed with the election after the issuance of calendar of events by the Returning Officer. It is nextly contended that respondents 8 and 9 having not completed the period of one year after they were registered by the Registrar of Trade Unions are not eligible to participate in the election as per the code of discipline, even though they are registered as trade unions under the Trade Unions Act. It is further submitted that the first respondent having appointed the Returning Officer with a direction to hold an election from among the six unions ought not to have directed the Returning Officer to hold the referendum including respondents 8 and 9, without any notice and without affording any opportunity of hearing to the six unions which were already permitted to participate in the referendum by an earlier order.
5. In reply to the said contention Sri Subba Rao, learned Senior Counsel appearing for the respondents 8 and 9 submits that the first respondent-Commissioner ought not to have declared that the workers who are appointed by a contractor under a contract are not eligible to participate in the election without notice to them and he further submits that the code of discipline has no statutory force and therefore the respondents 8 and 9 are also entitled to participate in the referendum. He further submits that there is no reason to restrict the participation in the referendum on the ground that the union should have been registered one year prior to the date of calendar of events. It is nextly contended that the petitioners have no locus standi to maintain these writ petitions in order to enforce the code of discipline which has no statutory force.
6. Sri Subba Rao, learned Senior Counsel further contended that the contract labourers are also eligible to participate in the referendum since they are engaged in the work of the third respondent-industry.
7. Respondents 8 and 9 have not challenged the order Armexure-G wherein they are excluded from participating in the referendum.
8. Sri Prabhakar, learned Counsel appearing for the third respondent-industry has neither supported the petitioners nor respondents 8 and 9.
9. Since Sri Subba Rao, contended that these writ petitions filed by the petitioners are not maintainable under Articles 226 and 227 of the Constitution of India, I propose to consider this contention before considering other contentions.
10. In these writ petitions what is sought for is quashing of the order issued by the first respondent-Commissioner. The first respondent being the Head of the Department of Labour has issued the order directing the Returning Officer to hold an election extending the referendum to respondents 8 and 9. If this order passed by the first respondent is not in accordance with law or principles of natural justice and if it is arbitrary, this Court may interfere in the said order in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. Therefore, I hold that these writ petitions are maintainable.
11. The code of discipline was accepted by all Employers' and Workers' Organisations at the 16th Session of the Indian Labour Conference held at Nainital in May 1958. No doubt, the code of discipline has no statutory force. But, this code of discipline has to be observed, applied and followed both by the employer and the employees in order to have industrial peace.
12. The first respondent-Commissioner having appointed the Returning Officer with a direction to hold referendum confining only to six recognised unions and pursuant to that the Returning Officer having issued the calendar of events fixing the date of election should not have interfered in the process of election by issuing a direction to the Returning Officer not to proceed with the election. Further, even assuming that there are defects in the calendar of events issued by the Returning Officer and if there is any such representation alleging any defect, the Commissioner ought to have issued notice to six unions in respect of which the referendum has been confined by an earlier order, before directing the Returning Officer not to proceed with the election.
13. In the instant case, the first respondent-Commissioner had not issued any such notice and afforded any opportunity to the interested six unions. Therefore, the first respondent-Commissioner by modifying the earlier order and directing the Returning Officer to hold an election by extending the referendum to other two unions i.e., respondents 8 and 9 is illegal as per the code of discipline found in Annexure-I which reads as follows.-
"Where there is more than one union claiming recognition should have been functioning for at least one year after registration. Where there is only one union, this condition would not apply".
14. From this it is seen that in order to get recognition by the management, the union should have completed one year from the date of registration. Admittedly, respondents 8 and 9 have not completed one year as on the date of calendar of events from the date of registration. If that is so, these two unions cannot be recognised by the third respondent till the expiry of one year from the date of registration. If at all, if the respondents 8 and 9 are not entitled to get recognition by the third respondent, they shall not be permitted to participate in the referendum in order to elect the union for the purpose of representing the interest of the workers with the management. Therefore, in my view, the order issued by the first respondent directing the Returning Officer to hold the referendum including respondents 8 and 9 is liable to be quashed as they are not eligible to get recognition as per code of discipline. Further, the impugned order is also liable to be quashed as the first respondent-Commissioner has no jurisdiction to interfere with the process of election after issuance of calendar of events by the Returning Officer. The impugned order is also illegal because no opportunity has been afforded to the interested unions before cancelling the calendar of events and also before passing an order Annexure-H.
15. Hence, I pass the following order:
(i) The writ petitions are allowed. Annexure-H is quashed. (ii) A direction is issued to the second respondent to continue the election pursuant to the order of the first respondent-Commissioner as per Annexure-B and by issuing a fresh calendar of events in accordance with Annexure-G confining the election, to the six unions.