Gujarat High Court
Ongc Mazdoor Sangh vs Regional Labour Commissioner ... on 4 February, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/3525/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3525 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ONGC MAZDOOR SANGH
Versus
REGIONAL LABOUR COMMISSIONER (CENTRAL), VADODARA
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Appearance:
MR AK CLERK(235) for the PETITIONER(s) No. 1
MR AMRESH N PATEL(2277) for the RESPONDENT(s) No. 3
MR DEVANG VYAS(2794) for the RESPONDENT(s) No. 1
MR RITURAJ M MEENA(3224) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 04/02/2019
ORAL JUDGMENT
1. The present petition under Article 226 of the Constitution of India is filed by ONGC Mazdoor Sangh for Page 1 of 54 C/SCA/3525/2018 JUDGMENT seeking the following reliefs:
"23. The petitioners therefore prays that the may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order:-
(a) Quashing and setting aside the order dated 26-02-
18 passed by respondent No.1 at Annexure-H.
(b) Quashing and setting aside the order dated 26-02-18 at Annexure-I in so far as it permits the respondent No.3 to participate in the process of verification of membership of union at Ankleshwar asset.
(c) Grant such other and further reliefs and passing such other and further orders as may be necessary in the facts and circumstances of the case.
24. During the pendency and final disposal of the petition the may be pleased to pass an order staying the operation and implementation of the order dated 26- 02-18 at Annexure-H and restraining the respondent No.1 from treating the respondent No.3 union as eligible for recognition under the Code Of Discipline and allowing the respondent No.3 union from participating in the process of verification of membership of Union at Ankleshwar asset."
2. The background of facts of the petition is that the petitioner is a Union, which is constituted to be recognized by ONGC for its Ankleshwar Asset. It is the only functioning unit at Ankleshwar Asset. The last process of verification of membership of the Union was undertaken somewhere in the year 2009 since, every two years, such exercise of verification is to be undertaken. Here in the present case, the said process of verification of membership of the Union was Page 2 of 54 C/SCA/3525/2018 JUDGMENT not undertaken for quite some time. The Petroleum Employees Union and Petroleum Mazdoor Sangh filed two petitions namely, Special Civil Application Nos.12368 and 16398 of 2016 respectively for seeking direction inter alia to the Chief Labour Commissioner (Central) to undertake the process of verification of membership of the Unions with immediate effect. As per the say of the petitioner, this Hon'ble Court vide its judgment and order dated 22nd September, 2017, after hearing, allowed the said petitions and directed Chief Labour Commissioner (Central) and Regional Labour Commissioner (Central) to initiate the process of verification of membership of the Union operating in ONGC Western Region through secret ballot. Pursuant to the said order, the Chief Labour Commissioner (Central) appointed two Returning Officers, one for Ahmedabad, Mehsana, Cambay and Jodhpur and the other for Ankleshwar and Vadodara. The Regional Labour Commissioner (Central), Ahmedabad and Returning Officer issued a notification dated 29.1.2018 for verification process for two Assets. It is further the case of the petitioner that on 15.11.2017, the Deputy Chief Labour Commissioner (Central), Ahmedabad wrote to GM-Head, HR and ASM, ONGC, Ankleshwar Asset seeking certain information and in response thereto, Ankleshwar Page 3 of 54 C/SCA/3525/2018 JUDGMENT Asset wrote to Deputy Chief Labour Commissioner (Central), Ahmedabad on 21.11.2017 stating that at Ankleshwar Asset, only one Union is functioning which is the present petitioner i.e. ONGC Mazdoor Sangh. On 22.11.2017, simultaneously, Deputy Chief Labour Commissioner (Central), Ahmedabad also wrote a letter to ED-Asset Manager, ONGC Ankleshwar Asset forwarding therewith representation of respondent No.3 Union on 17.11.2017 and in response thereto, ED-Asset Manager, ONGC Ankleshwar Asset wrote to Deputy CLC (Central), Ahmedabad on 13.12.2017 stating that respondent No.3 Union has not submitted its branch office address at Ankleshwar and that the said Union has intimated to ONGC that it has opened an ad-hoc branch at Ankleshwar. This letter is written by respondent No.3 i.e. ONGC Employees Mazdoor Sabha on 13.12.2017 informing the above particulars.
3. It is further the case of the petitioner that subsequently, respondent No.1 called a meeting of Unions on 16.2.2018 at Vadodara and on the said date, the present petitioner Union submitted its objection against respondent No.3 Union as respondent No.3 Union is not fulfilling the eligibility criteria under the Code of Discipline which is a part of ONGC IR Manual 2007. It has also been pointed out that since last Page 4 of 54 C/SCA/3525/2018 JUDGMENT number of years, it is only the petitioner Union which is functioning at Ankleshwar Asset and since about three years, it has not submitted any reply to the application under RTI Act, 2005. Additionally, it was also pointed out that respondent No.3 Union is not having even 15% membership in the employees employed by ONGC at Ankleshwar Asset as required under Code of Discipline. Further, the provisions of Trade Unions Act, 1926 do not recognize or accept "the ad- hoc body" of any trade union and it is admitted that respondent No.3 has just opened up an ad-hoc branch at Ankleshwar Asset.
4. Simultaneously, respondent No.3 Union also filed a reply on 19.2.2018 to respondent No.1 without adverting to the Code of Discipline and the eligibility conditions. Rather it has admitted that it is functioning at Vadodara (Regional Office Field Vadodara and Central Workshop), Mehsana, Cambay and Jodhpur and, therefore, it is a fact, according to the petitioner, that respondent No.3 was not functioning at Ankleshwar Asset. This has been even curled out from the communications. It was further pointed out that seven out of nine officer bearers of respondent No.3's so-called ad-hoc body were in fact the members of the petitioner Union upto 30th September, 2017 and as such, the eligibility of Code of Page 5 of 54 C/SCA/3525/2018 JUDGMENT Discipline is not being fulfilled in any case by respondent No.3 Union. Still, however, despite aforesaid circumstances, respondent No.1 on 26-2-2018 has permitted respondent No.3 Union to participate in verification process by treating it as an eligible union. The said order was served on the petitioner Union only on 27.2.2018 at 17.15 hours through email and on the same day, respondent No.1 issued notification declaring the schedule of verification process at Ankleshwar Asset i.e. on 26.2.2018 simultaneously and abruptly. As a result of this, no time was left for the petitioner Union to raise any grievance in such a situation. Considering this circumstance, which has abruptly occurred left with no other alternative for the petitioner but to approach this Court by way of Special Civil Application on 28.2.2018 and upon perusal of the material placed before the Court, the notice was issued after hearing both the sides on 6.3.2018 whereby the process pursuant to the impugned notification dated 26.2.2018 is made subject to further orders. Subsequently, on 7.3.2018, both the learned advocates representing respective sides have requested the Court to deal with and dispose of the main petition itself looking to the controversy which has been generated. As a result of this, the hearing took place on 4.5.2018 and later Page 6 of 54 C/SCA/3525/2018 JUDGMENT on, the learned advocates have submitted their respective written submissions which are taken on record and with this background, the present petition is requested to be dealt with finally. In between, on account of change of the roster, the petition went before another learned Coordinate Bench but after the procedure having been followed, again it has been placed for consideration before this Court and since the pleadings and the arguments were already over, the learned advocates have requested the Court to deal with and dispose of the petition on the basis of submissions which were made before the Court.
5. Before dealing with the rival submissions of both the contesting parties, some background of facts deserve to be noted down. Originally, two petitions were filed by the respective Unions i.e. Petroleum Employees Union and Petroleum Mazdoor Sangh and it does not appear to have been filed by respondent No.3. In those two petitions, the Court, after considering the rival contentions and after hearing, has made certain observations, which are to be taken note of. It was the grievance in those petitions that on account of some inaction on the part of labour machinery and in view of the stand taken by the authorities, the process of verification of membership of the Union operating in ONGC Page 7 of 54 C/SCA/3525/2018 JUDGMENT Ltd., Western Region could not take place and, therefore, the same shall be undertaken through secret ballot within some stipulated period. It was noticed by the Court that last verification was made way back in 2009 and a similar process needs to be undertaken. However, a request was made to do the actual verification of Western Region, ONGC Ltd. on asset-wise basis. Accordingly, while allowing the petitions, the Court observed as under:
"9. In view of above, the following order is passed.
9.1 Both these petitions are allowed.
9.2 The Chief Labour Commissioner, Central and the Regional Labour Commissioner (Central) at Ahmedabad, Respondents No. 3 & 2 respectively are directed to initiate the process of verification of membership of the Unions operating in ONGC Ltd., Western Region through secrete ballot. It is further directed that the said process would be on the line, as was lastly done in the year 2009, as per the order of the Regional Labour Commissioner (Central) Ahmedabad dated 20.02.2009 i.e. the said process would be for the Western Region but the actual verification would be Asset-wise.
9.3 It is directed to respondents No. 2 & 3 that the above process shall be initiated within a period of two weeks from the date of receipt of this order and shall be concluded, preferably within a period of four months from the date of initiation of such process.
9.4 Liberty is reserved to the parties, to move this Court, in case of any difficulty."
In paragraph No.9.4, liberty was kept open in case of difficulty.
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6. Now in view of this direction which has been issued by the Court, a notification dated 29.1.2018 appears to have been issued by Government of India, its Ministry of Labour and Employment, Office of Regional Labour Commissioner(Central) and by taking note of the direction given by this Court, a secret ballot election is to be held for determining the relative strength of members of Trade Unions operating in ONGC Ltd., Western Region asset-wise. The word "asset-wise" was specifically incorporated in view of the direction contained in earlier order, as stated above. As a part of that process, the information were solicited, the objections were invited and the process has been initiated and counting was ordered to be held on 28.3.2018 at 10 hours. This was with respect to Ahmedabad Asset. In similar way, the process also was to be undertaken for Ankleshwar Asset and for that purpose, a reference is to be made of communication dated 21.11.2017 as reflecting on page 24 of the petition compilation. This communication indicates certain particulars with regard to status and affairs of both the respective unions i.e. the petitioner as well as respondent No.3. In the queries contained in the said communication, names of all unions, whether registered or unregistered, together with the names of central organizations of workers Page 9 of 54 C/SCA/3525/2018 JUDGMENT which are affiliated to any central organizations of workers, whether they have accepted Code of Discipline or not and if accepted, from what date. In respect of this point No.1 query, it is reflecting that the only union which has accepted Code of Discipline affiliated to Bharatiya Mazdoor Sangh is in Ankleshwar Asset and the same is stated to be functioning with effect from 3.11.1999 having registration number as well as all particulars. The office bearers' particulars have also been provided wherein the President and the General Secretary are functioning from Ankleshwar office. Total number of workers employed in Ankleshwar Asset are stated to be 1107 and the recognition was granted under the Code of Discipline to this union with effect from 5.5.2009. Now with respect to respondent No.3, the particulars, which are reflecting from the record on page 26 in a communication dated 13.12.2017 i.e. later on to the petitioner indicates that only registered office of respondent No.3 union is at Mehsana and not at Ankleshwar. In this communication, it is further reflecting that registered office of respondent No.3 at Mehsana has been communicating with management of ONGC Ankleshwar Asset and, therefore, it is not possible to communicate with them formally. Therefore, in one of his earlier communications, the General Secretary of respondent Page 10 of 54 C/SCA/3525/2018 JUDGMENT No.3 Union, Mehsana Branch vide his letter dated 25.9.2017 had intimated that it is an ad-hoc branch which has been opened up at Ankleshwar and has provided list of office bearers functioning at Ankleshwar. This communication is generating two impressions one, that there is no regular branch office of respondent No.3 at Ankleshwar Asset, merely an ad-hoc branch is opened up and two, it is appearing that it is not working for one year since then. These particulars have been reflecting as on December, 2017 and, therefore, what is emerging from the record is that it is the petitioner Union which is functioning since 1999 in Ankleshwar Asset and in the recent past, only prior to impugned communication, an ad-hoc branch is opened up by respondent No.3 and, therefore, this has led the petitioner to object specifically in writing.
7. Yet another communication, which is not possible to be ignored, is a communication dated 20.2.2018 written by the petitioner to the Regional Labour Commissioner(Central) and the Returning Officer specifically objecting to the status of respondent No.3 in Ankleshwar Asset and has, in turn, stated that respondent No.3 ONGC Employees Mazdoor Sabha in its letter admitted that they are functioning at Vadodara(Regional Office Field Vadodara and Central Page 11 of 54 C/SCA/3525/2018 JUDGMENT Workshop), Mehsana, Cambay and Jodhpur and hence, admittedly not functioning at Ankleshwar Asset. Only in the recent past, an ad-hoc branch is opened up where out of 9 office bearers, some are from the petitioner Union and 9 office bearers are on the contrary members of the petitioner Sangh till September, 2017 including 2 office bearers namely, Amit Vasava and Chirag Rana and for that purpose, a request was made by the petitioner objecting to the status of respondent No.3 in Ankleshwar Asset. However, on 26.2.2018, respondent No.3 was recognized stating that it is fulfilling the criteria as per Code of Discipline to participate in the process of verification of membership operating in Ankleshwar Asset and held that both the unions are eligible to participate in the said process. Since this is the decision taken by the respondent authority, the present petition has come up for consideration in this set of circumstances.
8. The learned advocate, Mr. A.K.Clerk appearing on behalf of the petitioner has vehemently contended that such a move is not only unjust and contrary but smacks of mala fides. Though it was specifically directed that verification process was to be done on asset basis and though respondent No.3 is not fulfilling the Code of Discipline, an attempt is made to adversely affect the petitioner. With a view to substantiate Page 12 of 54 C/SCA/3525/2018 JUDGMENT his stand taken in the petition, detailed written submissions are brought before the Court raising several issues and since the same are in written form, the Court deems it proper to reproduce the same hereinafter:
"
(1) Recognition of union is granted under the Code of Discipline. (P. 63) (2) The policy of recognition of union in ONGC itself provides as under:-
"If ONGC wants to conduct secret ballot through CIRM, the same has to be in accordance with the instructions of CLC(C) in this regard and not in accordance with ONGC's policy". (P. 64) (3) Code of Discipline is found at P.65. The criteria for recognition of union are found at P.66, items 1 & 2 of Annexure-A. (4) The instructions issued by CLC (C) are found in the memorandum dated 18-12-80 at P.70.
(5) Dual membership of unions is not permissible.
P.70-Inter Union Code of Conduct-Item 2.
(6) In reply to the letter of Dy. CLC ( C) Ahmedabad seeking information the ONGC Ankleshwar Asset wrote on 21-11-17 (P. 24). The ONGC has clearly stated that the petitioner union is the only union registered and it Page 13 of 54 C/SCA/3525/2018 JUDGMENT has accepted the Code of Discipline. ONGC also stated that there is only one union functioning in Ankleshwar Asset. The membership as per the latest annual return is also stated.
(7) Dy. CLC(C) sought comments of ONGC Ankleshwar Asset on the representation dated 17-11-17 made by respondent No. 3 union by his letter dated 22-11-17. ONGC replied on 13-12-17 (P. 26) to this letter stating that respondent No. 3 union has not submitted its branch office address at Ankleshwar and that the union has intimated that its "ad-hoc" branch has been opened at Ankleshwar.
(8) The petitioner objected to the respondent No. 3 union by its letter dated 16-02-18 (P. 28). (9) Respondent No. 3 union admitted in its reply dated 19-02-18 that it is not functioning at Ankleshwar. (10) The petitioner in rejoinder wrote a letter dated 20- 02-18 (P. 33) pointing out that 7 of the 9 so called office bearers of the "ad-hoc" body of respondent No. 3 union were members of the petitioner union till 30-09-17. (11) The respondent No. 3 union has not even claimed any membership at Ankleshwar in their letter dated 19- 02-18 (P. 31).
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C/SCA/3525/2018 JUDGMENT (12) On 26-02-18 respondent No. 1 passed the
impugned order treating the respondent No. 3 union as eligible to file nomination for Ankleshwar Asset and on the same day published a notification for Ankleshwar Asset.
(13) Whereas this Hon'ble Court it its judgment and order dated 22-09-17 in SCA Nos. 12368 and 16398 of 2016 directed that the said process would be for the Western Region but the actual verification would be asset wise.
(14) Therefore this year CLC(C) started the verification process for the Western Region of ONGC asset wise. CLC(C) appointed 2 RLC(C) as Returning Officers. RLC(C) Ahmedabad is appointed as Returning Officer for 4 assets i.e. Ahmedabad, Mehsana, Cambay and Jodhpur. The notification dated 29-01-18 issued by him is at P. 16. The notification clearly states that the secret ballot election is being held Asset Wise (P.16). The RLC(C) Vadodara is appointed as Returning Officer for Ankleshwar. He issued a notification dated 26-02-18 (P.
38).
(15) It is submitted that in the affidavit in reply the respondent No. 3 union has claimed membership at Page 15 of 54 C/SCA/3525/2018 JUDGMENT Ankleshwar Asset but before the RLC (C) they have not claimed any membership at Ankleshwar Asset. The membership is to be shown in the latest annual return filed on 31-12-16 before the Registrar of Trade Unions. In the said annual returns the respondent No. 3 union has not shown any membership at Ankleshwar. (16) In the affidavit in reply the respondent No. 3 union has claimed 15% membership at Ankleshwar. Whereas in the argument, the respondent No.3 union submitted that the said criteria under Code of Discipline does not apply in secret ballot.
(17) Policy of recognition of union in ONGC, which includes Code of Discipline and the instructions issued by CLC(C) dated 18-12-80 are part of IR Manual of ONGC, 2007 (P. 63 to 72).
(18) The ONGC wrote to the respondent No. 3 union for providing the information about the postal address of the President and General Secretary, membership as per latest annual return and the copy of the Constitution of the union functioning in the establishment (P. 117). The respondent No. 3 union has stated the address of its President and General Secretary are at Mehsana in their letter dated 30-11-17 (P. 119). At P. 120 the respondent Page 16 of 54 C/SCA/3525/2018 JUDGMENT No. 3 union had admitted that its branch has started functioning at Ankleshwar from September 2017. Meaning thereby it is admitted by respondent No. 3 union that it is not functioning at Ankleshwar for more than one year.
(19) The purpose of granting recognition to the union having largest membership in any Asset is that ONGC will negotiate only with the recognized union and provide certain facilities to the union. If a union like respondent No. 3 union which is not at all functioning at Ankleshwar and has no membership (not even 15%) is recognized for Ankleshwar Asset, it would be contrary to the very purpose of granting recognition under the Code of Discipline and defeat the very purpose of granting recognition to represent the workmen of Ankleshwar Asset before the management of ONGC.
(20) The verification process for the years 2002, 2005 and 2009 was undertaken by CLC (C) for Western Region as a whole.
(21) In 2005 also the recognition was granted under the Code of Discipline (P. 147). In 2005 also the verification of membership of unions operating in entire Western Region of ONGC was conducted through secret ballot (P. Page 17 of 54 C/SCA/3525/2018 JUDGMENT 149-A).
(22) In 2009 the secret ballot election was for the entire Western Region and therefore a union filing nomination from one Asset could also file nomination from other Assets. Therefore the petitioner union filed nomination from Ahmedabad, Ankleshwar Vadodara and Mehsana. Whereas the respondent No. 3 union filed nominations from Jodhpur, Ahmedabad, Vadodara, Mehsana and Cambay (P. 57-B).
After withdrawal of nominations, petitioner contested from Ankleshwar and Vadodara and respondent No. 3 union contested from Mehsana, Cambay, Jodhpur, Ahmedabad and Vadodara (P. 57-C).
Since the election was for the entire Western Region and the entire Region was taken as an "establishment", the unions were not required to fulfil the eligibility criteria for each Asset separately.
But this year the verification process is being done Asset wise and therefore each union has to fulfil the eligibility criteria under the Code of Discipline for each Asset separately.
(23) The 2002, 2005 & 2009 secret ballot elections were held by CLC(C) for the entire Western Region Page 18 of 54 C/SCA/3525/2018 JUDGMENT (Region wise). Therefore the entire Western Region was taken as "establishment" and a union fulfilling eligibility criteria under the Code of Discipline in any of the Assets was allowed to file nominations from other Assets also. Whereas as per this Hon'ble Court's order dated 22-09- 17, this year the process was to be done Asset wise. Therefore it is necessary for a union to fulfill the eligibility criteria for each Asset separately. The respondent No. 3 union does not fulfill the criteria for Ankleshwar Asset.
(24) The petitioner raised objections before the authority i.e. RLC(C) Vadodara and the Returning Officer and he has passed the impugned order on 26-02- 18 which can be challenged only before this Hon'ble Court. Therefore the present petition is maintainable u.a. 226 of the Constitution of India.
(25) It is submitted that in the affidavit in reply the respondent No. 3 union had attempted to show that they are functioning at Ankleshwar but in their reply dated 19-02-18 to RLC(C) they have admitted that they are not functioning at Ankleshwar (P. 31).
(26) The respondent No. 3 union also attempted to
show that it has opened an "ad-hoc" branch at
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Ankleshwar in Sept. 2017. It is submitted that the law does not recognize any "ad-hoc" branch of any union. Secondly 7 of the so called office bearers of the respondent No. 3 union at Ankleshwar were the members of the petitioner union till 30-09-17. These 7 persons could not have become members of respondent No. 3 union as dual membership is not permissible (P.
70). Moreover the so called meeting in which these 7 persons were selected as office bearers was held on 22- 09-17 as per the notification dated 25-09-17 (P. 53). Therefore they could not have been selected by respondent No. 3 union as they resigned from the petitioner union only on 27-09-17 (P. 46 to 52). (27) The facts that the respondent No. 3 union has tried to show that they were functioning at Ankleshwar and they had membership at Ankleshwar in the affidavit in reply itself shows that they are aware of the eligibility criteria under the Code of Discipline.
(28) The respondent No. 1 has erred in ignoring that this year the verification process is being done Asset wise and therefore the functioning of the respondent No. 3 union at Mehsana and its membership at Mehsana does not make the said union eligible for participating in Page 20 of 54 C/SCA/3525/2018 JUDGMENT the process at Ankleshwar. The respondent No. 3 union has to fulfill the eligibility criteria at Ankleshwar which it admittedly does not. Therefore the impugned order dated 26-02-18 passed by respondent No. 1 is illegal, contrary to law and perverse.
(29) The Code of Discipline is the basic document under which the recognition is granted by the employers to the unions. Therefore the eligibility criteria under the Code of Discipline are pre-requisites for any union to participate in the secret ballot election. The said criteria cannot be ignored or given a go by, by any authority or union.
(30) The policy of ONGC is a draft policy (P. 40-J - 40-T & P. 6 of SCA No. 16398). Therefore it cannot be applied or followed. Even the policy of ONGC in the IR Manual of 2007 (P. 78 to 80) is not followed by CLC(C) for carrying out any process of verification of membership either in the past or this year. (31) The ONGC's policy of recognition of union (P.78 to
80) is irrelevant as CLC(C) has not conducted any verification process as per the policy of ONGC. CLC(C) is conducting the process for verification of membership of union through secret ballot according to the Code of Page 21 of 54 C/SCA/3525/2018 JUDGMENT Discipline and his instructions dated 18-12-80 only. (32) In past also the unions have been declared elected uncontested or unopposed when there is only one union remaining in the establishment (P. 109 of SCA No. 12368 of 2016). The said letter dated 05-06-15 written by ONGC to Dy. Director, Ministry of Labour & Employment points out that in 2009 the respondent No. 3 union was unopposed at Mehsana and Cambay and therefore secret ballot was not required to be conducted at these locations. Similarly this year at Vadodara and Cambay the respondent No. 3 union was unopposed and no election was held at these places. Therefore if the impugned order is quashed, the respondent No. 3 union cannot participate in election at Ankleshwar and the petitioner would be declared elected unopposed at Ankleshwar.
(33) All the unions have given written consent to abide by the Code of Discipline and therefore it is not open for respondent No. 3 union to contend that the eligibility criteria under the Code of Discipline do not apply or that they can be ignored.
(34) Relevant pages in the record of SCA No. 12368 of 2016:-
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P. No. Relevant lines
60-61 Para 2 - Line 4- verification of membership
of unions in Western Region of ONGC by
secret ballot.
78 Para 1 - Last line - Union membership
verification through secret ballot procedure under Code of Discipline.
79 Para 2 - Secret ballot procedure under Code of Discipline.
98 Para 2 - Last 10 lines - "As per the policy of reorganization of unions of ONGC ......
..... will keep on enjoying its status".
109 Para 1 - Conducting secret ballot election under Code of Discipline at this juncture of time.
Para below the table - "Out of six .....
.... conducted at these locations".
110 Last Para - "In view of ....
.... as per the Code of Discipline".
111 Para 1 - Last line - accorded recognition in respect of Ahmedabad Asset under Code of Discipline for a period of two years.
(35) Relevant pages in the record of SCA No. 16398 of 2016:-
P. No. Relevant lines 6 Old policy of recognition of union - Draft policy 40-J The respondent No. 3 union contended that the policy of ONGC was a draft policy.
40-T The respondent No. 3 union contended that the policy of ONGC was a draft policy.
54-A Para 1 - Verification of union membership[ are conducted for the entire WRBC (Western Region) 54-B Para - 3 - Common ballot paper for entire region Para - 5 - The union filing nomination from one project, his name will also appear on ballot paper for all projects (Assets).
57-A to Order dated 24-02-2009 - The table of valid 57-D nominations at 57-B and nominations after Page 23 of 54 C/SCA/3525/2018 JUDGMENT withdrawals at 57-C. (36) The reference in the arguments of the respondent No. 3 union to check off system has no relevance and is misleading. It is not correct to say that the requirement of 15% membership under the Code of Discipline is only for check off system and not for secret ballot election. In the present petition the process of verification of membership of unions is conducted Asset wise and all the unions must satisfy the basic two eligibility criteria for recognition of union prescribed under Code of Discipline for each Assets where the union wishes to contest the election.
(37) The differences in the secret ballot election for the entire Western Region in 2002, 2005 and 2009 and the Asset wise election this year are evident from the documents on record. The notifications issued by the Central Government Authorities, orders passed by this Hon'ble Court in various petitions, the documents pertaining to the procedure for verification of unions like appointment of Returning Officers, ballot paper, correspondence etc. clearly show the difference in the procedure in past years and this year.
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C/SCA/3525/2018 JUDGMENT (38) The petitioner relies on General Secretary, Rourkela Sramik Sangh Vs. Rourkela Mazdoor Sabha, AIR-91-SC- 1250. The Apex Court has held that the recognition of union is under Code of Discipline. At P. 1254 the Hon'ble Court has noted that the criteria of recognition is prescribed in Code of Discipline. The Court has also held that the State machinery should verify the membership as provided under Code of Discipline. As ONGC is spread out in the entire country, the Central Government through CLC(C) conducts the verification process.
(39) In view of the above facts and circumstances it is submitted that the respondent No. 3 union does not fulfill both the eligibility criteria under the Code of Discipline (P. 66) and therefore the respondent No. 3 union could not have filed nomination for Ankleshwar Asset and the impugned order passed by respondent No. 1 dated 26-02-18 (P. 34 - 37) is illegal, contrary to law and perverse and deserves to be quashed and set aside. (40) As a consequence thereof the petitioner union being the only union functioning at Ankleshwar Asset and having very large membership (much more than 15%) at Ankleshwar Asset should be declared elected unopposed Page 25 of 54 C/SCA/3525/2018 JUDGMENT at Ankleshwar Asset."
9. Now to substantiate these contentions, the learned advocate, Mr. Clerk has also relied upon a decision of Hon'ble Apex Court in the case of General Secretary, Rourkela Sramik Sangh Vs. Rourkela Mazdoor Sabha and others reported in AIR 1991 Supreme Court page 1250 and by referring to the said decision, he has impressed upon the implementation machinery under the Code of Discipline. A reference is made to relevant paragraph contained in the said decision essentially paragraph No.6 which has a reference to the procedure of verification of membership of union for the purpose of recognition under the Code of Discipline and by pacing reliance upon it, a submission is made to grant the relief as prayed for in the petition.
10. To oppose the stand taken by the learned advocate for the petitioner, Mr. Amrish Patel, representing the contesting respondent No.3 has vehemently submitted that the petitioner has approached the court only with a view to stall the process of verification which was undertaken pursuant to the direction. The idea behind this move of filing the petition Page 26 of 54 C/SCA/3525/2018 JUDGMENT by the petitioner Union is nothing but to continue to retain power in it in respect of Ankleshwar Asset and the intention was not to demand verification at all. By referring to page
37.L of the petition compilation, the learned advocate, Mr. Patel has submitted that there is a specific finding contained in the order that ONGC Mazdoor Sabha is registered under the provisions of Trade Unions Act, 1926 way back on 6.1.1961 and the respondent authority is well aware about the existence of respondent No.3 since long. On the contrary, ONGC Employees Mazdoor Sabha had given consent as well as the documents and information as required under the Code of Discipline and the material which was examined was taken note of by the authority who passed an order and found that respondent No.3 Union is fulfilling the criteria laid down in the Code of Discipline and, therefore, both the unions have been found eligible to pursue in verification of membership through secret ballot. Now this finding has been arrived at by the authority based upon relevant record and, therefore, there is hardly any substance in the submission made by the learned advocate for the petitioner. By referring to page 11, the learned advocate, Mr. Patel has submitted that this petition itself was filed for the purpose of and related to the verification process of membership of Unions Page 27 of 54 C/SCA/3525/2018 JUDGMENT operating in ONGC Limited especially Western Region through secret ballot. The petition being Special Civil Application No.12368 of 2016 is related to Ahmedabad and by taking note of inaction on the part of labour machinery, the Court was constrained to issue direction. Mr. Patel has submitted that undisputedly, respondent No.3 is functioning since long and also is a recognized union and in past, respondent No.3 had participated in the year 2006 as well as in 2009 under the same policy. But only with a view to see that presently, verification process is not be undertaken, an attempt is made to file the present petition. The eligibility under the policy is being fulfilled by respondent No.3 in no uncertain terms and in the past, it has been allowed to participate and on the basis of same pattern, presently also, the process is to be undertaken. There is hardly any substance in raising objection. On the contrary, under the policy of ONGC, in Chapter 19, a specific remedy is available with the petitioner to ventilate the grievance but instead of availing such remedy and facing the process, an attempt is made to put on hold the ensuing election. As a result of this, this intent on the part of the petitioner may not be allowed to precipitate further by granting any relief as prayed for in the petition.
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11. The learned advocate for the respondent has further pressed into service the detailed written submissions at length, but gist of the same is that respondent No.3 Union is a recognized union having its branch office at Ankleshwar Asset, may be on ad-hoc and are office bearers as well which is sufficient enough for being eligible as per the Code of Discipline and, therefore, can legitimately participate in the verification process and what has been found by the authority is that both the respective unions are eligible and hence, no error is committed by the authority. It has been submitted that on the contrary, the petitioner ought not to have objected the healthy competition which ultimately keep intact the bargaining power and the respective union and, therefore, there is hardly any substance in case of the petitioner. Mr. Patel has further contended that previously when verification process was undertaken pursuant to the policy, there is no change that has taken place and, therefore, respondent No.3 is legitimately entitled to be considered. It has further been submitted that the Code of Discipline is silent on the issue of ad-hoc body and, therefore, it is not open for the petitioner to contend that since respondent No.3 is having ad-hoc branch at Page 29 of 54 C/SCA/3525/2018 JUDGMENT Ankleshwar Asset, it is not entitled to participate. By referring to some of the clauses contained in the Code of Discipline, a contention is raised that ultimately, object of the policy is to be seen and the Code of Discipline is not a mandatory compulsion upon respondent No.3. On the contrary, apart from that, the eligibility is not in question as found by the authority and, therefore, since the earlier elections of 2002, 2005 and 2009 have also been based upon the very same policy particularly keeping in view the clause (4) of the policy, this time also, respondent No.3 is rightly allowed and found eligible. Mr. Patel, the learned advocate has submitted that there are two policies framed one, by ONGC and another by the Central Government and the policy which has been observed in the past is also based on the very same pattern, the present process also is to be undertaken and there is a clear distinction between check-off system and the secret ballot. In any case, this time by objecting against respondent No.3, the petitioner cannot make any attempt to halt the verification which is to be undertaken pursuant to the direction. Accordingly, the learned advocate by pressing the written submissions has requested the Court to dismiss the petition. Page 30 of 54
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12. Mr. Patel has tried to further submit that eligibility criteria is not changed even if verification is to be done on Asset base and simply because in the year 2009, respondent No.3 has not contested, that does not mean that this time also, respondent No.3 is estopped from contesting or participating. Respondent No.3 Union is having adequate strength which has been examined and after applying the principle of natural justice, a decision is taken and, therefore, no case is made out by the petitioner.
13. With a view to strengthen the submission, the learned advocate for the petitioner has relied upon a decision delivered in the case of General Secretary, Rourkela Sramik Sangh Vs. Rourkela Mazdoor Sabha and others reported in AIR 1991 Supreme Court page 1250 and has made an attempt to analyze the situation on the aspect of recognition of trade union and the Code of Discipline and in that context, the implementing machinery.
14. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, some of the circumstances deserve consideration and accordingly, before opinion anything on the decision, certain Page 31 of 54 C/SCA/3525/2018 JUDGMENT clauses contained in the Code of Discipline deserve consideration.
15. First of all, the policy of recognition of unions in ONGC framed in the year 2007 is essentially meant for harmonious industrial relations in ONGC. Keeping that object in mind, the recognition of trade unions in ONGC is done under the provisions of Code of Discipline adopted by the central employers and workers organization, pursuant to the suggestion made in Indian Labour Conference. ONGC accordingly is conferring recognition to the union commanding majority on the basis of verification of membership through the process of secret ballot and the same started in 1995 and subsequently institutionalized from 1997 onwards. Prior to 1982, ONGC was conferring recognition to the union on project level. However, in place of original recognition, the concept of sector-wise recognition continues and accordingly, constituencies for recognition are stipulated which refers to existing constituencies, which The are reproduced hereinbelow:
Sector Constituencies for recognition
Mumbai Sector The constituency of recognition is one which includes
Mumbai, Hazira & Uran
Southern Sector The constituency of recognition is one which includes Page 32 of 54 C/SCA/3525/2018 JUDGMENT Chennai, Karaikal and Rajahmundry.
Central Sector The constituencies of recognition are: (i) Kolkata (ii) Agartala Eastern Sector The constituencies of recognition are:
(i)Nazira/Sivasagar & Jorhat (ii) Silchar Western Sector The constituencies of recognition are: (i) Ahmedabad
(ii) Ankleshwar (iii) Baroda, Mehsana, Cambay and Jodhpur It has been noted down therein that above constituencies will continue. The present controversy is relating to Western Sector precisely with respect to Ankleshwar.
16. Annexure-A to the said policy has stipulated criteria for recognition of unions and since the relevant clause contained therein is relevant, same is reproduced hereinafter:
"1. Where there is more than one union, a 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.
2. The membership of the union should cover at least 15 per cent of the workers in the establishment concerned. Membership would be counted only of those who had paid their subscriptions for at least three months during the period of six months immediately preceding the reckoning.
3. A union may claim to be recognized as a representative union for an industry in a local area if it has a membership of at least 25 per cent of the workers of that industry in that area.
4. When a union has been recognized, there should be no change in its position for a period of two years.Page 33 of 54
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5. Where there are several unions in an industry or establishment the one with the largest membership should be recognized.
6. A representative union for an industry in an area should have the right to represent the workers in all the establishments in the industry; but if a union of workers in a particular establishment has a membership of 50 per cent or more of the workers of that establishment it should have the right to deal with matters of purely local interest, such as, for instance, the handling of grievances pertaining to its own members. All the workers who are not members of that union might either operate through the representative union for the industry or seek redressal directly.
7. In the case of trade union federations which are not affiliated to any of the four central organizations of labour the question of recognition should have to be dealt with separately.
8. Only those unions which observed the Code of Discipline would be entitled to recognition."
One of the clauses contained therein is that when there is more than one union, the union claiming recognition should have been functioning for at least one year after registration and where there is only one union, this condition would not apply. Here, this clause is indicating that at least from the date of registration, union must be functioning for one year and the membership should cover at least 15% of workers in the establishment concerned and the membership would be counted only of those who had paid their subscription for at least three months during the period of six months immediately preceding the reckoning. Clause (3) therein is Page 34 of 54 C/SCA/3525/2018 JUDGMENT stipulating that union may claim to be recognized as a representative union for an industry in the local area if it has a membership of at least 25% of the workers of that industry in that area.
17. Clause (5) therein indicates that where there are several unions in an industry or establishment, the one with the largest membership should be recognized. The conjoint reading of these clauses indicates that the petitioner Union is in the Ankleshwar establishment for a pretty long period and is recognized and fulfilling all the criteria with respect to recognition. Now as compared to this, on the basis of material which has been placed on record indicates that in the Ankleshwar Asset, in the recent past only, respondent No.3 has entered its zone by establishing mere ad-hoc branch and the membership has not been asserted as required and mentioned in the criteria. Be that as it may, a further clause contained in this policy deserves consideration which indicates that there shall be no dual membership of unions and every employee in an industry is free to join any union of his/her choice. Further, it appears that instruction issued by CLC(Central) regarding secret ballot memorandum also deserves some consideration and hence, the Court is Page 35 of 54 C/SCA/3525/2018 JUDGMENT inclined to deal with the same. The secret ballot system has been introduced since long and guided by the memorandum dated 18.12.1980 and for the purpose of ascertaining the relevant strength of unions operating in the establishment, the procedure of secret ballot for the purpose of verification is evolved and as a part of that, the instructions have been issued by CLC Instruction No.25/80. This instruction is a guiding format for carrying out verification of membership.
18. The ONGC has also framed its independent policy for recognition of unions known as "The Policy of Recognition to Unions in ONGC" which applies to all work centres of ONGC. The eligibility criteria for unions to participate in secret ballot for its recognition is also stipulated in this policy, which criteria reads as under:-
"The unions fulfilling the following criteria shall be eligible to participate in secret ballot:
(a) Which has been registered under Trade Unions Act, 1926 including a craft union and whose registration is valid for last one year and represents regular unionised categories of ONGC employees.
(b) Such trade union which observed the Code of Discipline and has not violated the same during last 3 years.
(c) The Constitution of such Union is not in any manner whatsoever deemed detrimental to ONGC and its growth.Page 36 of 54
C/SCA/3525/2018 JUDGMENT The Work Centre Head or the Project Head, as the case may be, will send the list of registered trade unions to CLC, with comments on the above eligibility criteria, at the time of requesting for conducting secret ballot.
However, the decision of CLC will be final in this regard."
19. Relevant clauses contained therein are that registered trade union including craft union and those whose registration is valid for last one year and represents regular unionised categories of ONGC employees. Now this later part is significant since the Court is confronted with a verification process of asset-wise. Clause (b) also contains that trade union must have observed the Code of Discipline and has not violated the same during last 3 years.
20. In the context of aforesaid situation, on record of the case, a list of recognized union as on 31.3.2007 is reflecting and item No.1 of the said list is of respondent No.3 which is independent recognized union and the sector/work centre for which recognition is clearly stipulated has no reference to Ankleshwar. The relevant extract of the said list is reproduced hereinafter:
Sl. Name & Address of the Union Affiliation Sector/Work centre for No. which recognized.
1. ONGC Employees Mazdoor Independent Vadodara, Ahmedabad, Sabha, "Shram Sadhana", Opp. Mehsana,Cambay, Police Parade Ground, Jodhpur Raopura Road,Vadodara-Page 37 of 54
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390001
2. Petroleum Employees Union, INTUC Mumbai Sector
Tel Rasayan Bhavan, Tilak
Road, Dadar, Mumbai-400014
3. ONGC Workmens' Association, CITU Kolkata
P-45, Taratolla Road, Kolkata-
700088.
4. ONGC Employees Association, INTUC Ankleshwar
Manav Vikas Bhavan,
Ankleshwar-393001
5. National Union of ONGC INTUC Dehradun
Employees, ONGC, Tel
Bhavan, Dehradun.248003
6. Petroleum Employees Union, INTUC Chennai, Karaikal,
ONGC, 9th Floor(East) CMDA Rajahmundry
Tower I, 1, Gandhi-Irwin Road,
Egmore, Chennai-600008.
7. ONGC Workers Union, ONGC, Independent Agartala Tripura Project, Agartala-
799014.
8. ONGC Purbanchal Employees' INTUC Nazira, Sivasagar, Jorhat Association, Sivasagar, Assam-
785697.
9. Trade Union of ONGC CITU Silchar Workers, ONGC, Forward Base, Silchar-788026, Assam.
21. Considering the submission of both the learned advocates appearing for the respective parties and having gone through the materials on record, following circumstances are not possible to be ignored. First of all, it appears that process of verification under one reason or the other did not take place for several years after 2009, which appears to have generated the controversy amongst the parties to the proceeding. The Court vide order dated 22.09.2017 passed in Special Civil Application No.12368 of 2016 with Special Civil Application No.16398 of 2016 had Page 38 of 54 C/SCA/3525/2018 JUDGMENT ordered the process of verification of membership of Unions, through secret ballot and while disposing of both petitions, it was categorically mentioned that there does not appear to be any dispute on any point and matter deserves some appropriate directions. Accordingly, the Court issued following directions:
"9. In view of above, the following order is passed.
9.1 Both these petitions are allowed.
9.2 The Chief Labour Commissioner, Central and the Regional Labour Commissiner (Central) at Ahmedabad, Respondents No. 3 & 2 respectively are directed to initiate the process of verification of membership of the Unions operating in ONGC Ltd., Western Region through secrete ballot. It is further directed that the said process would be on the line, as was lastly done in the year 2009, as per the order of the Regional Labour Commissioner (Central) Ahmedabad dated 20.02.2009 i.e. the said process would be for the Western Region but the actual verification would be Asset-wise.
9.3 It is directed to respondents No. 2 & 3 that the Page 39 of 54 C/SCA/3525/2018 JUDGMENT above process shall be initiated within a period of two weeks from the date of receipt of this order and shall be concluded, preferably within a period of four months from the date of initiation of such process.
9.4 Liberty is reserved to the parties, to move this Court, in case of any difficulty."
22. It has been directed that such process of verification of membership strength would be on the same line, which was done in 2009. The only indication which has been given is that such process would be for entire Western Region but actual verification would be "Asset Wise" and time limit was granted. In response to the said order, a notification came to be issued on 29.01.2018 and it was indicated that for carrying out such process, the secret ballot election is to be held under the overall supervision of the Central Industrial Relation Machinery Officials. As such, for those Trade Unions, which are operating in the Western Region having valid registration under the Trade Union Act and given the written consent for holding secret ballot, certain relevant information and the opportunity to explain and tender objection came to be invited. Later on, it appears that respondent No.3 - Union i.e. Page 40 of 54 C/SCA/3525/2018 JUDGMENT ONGC Employees Mazdoor Sabha has written a communication to the Regional Labour Commissioner giving particulars that they are fulfilling the eligibility criteria to submit nomination and supply certain particulars. The same further appears to have been objected by the petitioner essentially on two counts one, that respondent No.3 was admittedly functioning from Vadodara and having merely a branch office at Ankleshwar, which is recently opened up and submitted that 7 out of 9 office bearers of this ad-hoc body of respondent No.3 where the members of petitioner Union and there is no concept of dual membership and recently by joining respondent No.3 - Union, an ad-hoc body has made an attempt to establish their majority and it appears that respondent No.3 - Union is not functioning at Ankleshwar Asset in any form and as such an objection is raised that since this verification process is to be undertaken on asset basis, respondent No.3 is not eligible to participate on account of aforesaid infirmities. This objection has been considered by the authority and after granting adequate opportunity, it was found by respondent authority that objections are not sustainable and respondent No.3 is fulfilling the criteria to participate in verification of membership at Ankleshwar Asset. As such, both the petitioner and respondent No.3 - Union have Page 41 of 54 C/SCA/3525/2018 JUDGMENT been held to be eligible to participate in verification of membership, through secret ballot in the establishment of ONGC Ankleshwar Asset and this decision of February 2018 is made the subject matter of aforesaid petition.
23. During the passage of time, an interim order was passed on 07.03.2018, whereby, the process is not hampered by the Court but allowed to go on and the secret ballot boxes are kept in the safe custody to avoid any mischief and since that was a concurrence on the part of both the learned advocates representing the respective sides, result has not been declared and upon such interim order, the main petition with the consent of both the learned advocates has been heard extensively. During the course of hearing, the main submission is that since verification process is to be undertaken on the basis of asset wise, respondent No.3 having no permanent branch at Ankleshwar Asset nor having minimum required strength of 15% and not fulfilling the eligibility criteria of the Code of Discipline, respondent No.3 may not be allowed to participate to establish the strength.
24. Now in this context, a perusal of documents which are attached to the petition compilation indicated that the Page 42 of 54 C/SCA/3525/2018 JUDGMENT registered office of respondent No.3 - Union appears to be at Mehsana and ad-hoc branch has been opened up in September 2017, but from the overall reading of the policy related to recognition coupled with Code of Discipline, it appears prima facie that respondent No.3 is a recognized Union under the provisions of Trade Union Act and registered since long i.e. with effect from 1961 and even if looking from the criteria of Code of Discipline, then also it appears that respondent No.3 is an established Union representing several employees since last number of years. The Trade Unions Act, 1926 provides for registration of Trade Unions basically with a view to tender lawful organization of labour to enable collective bargaining and by virtue of registration, the Act confers certain protection and privileges but basically registration has got the effect of regulating the relations not only between workmen and employers but also between workmen and workmen and as per the provisions of the Act are not restricting in any form to establish ad-hoc body.
25. Further, a bare perusal to the policy of recognition of Unions which is in vogue in ONGC establishment has also no such barrier prescribed, the only requirement is that a concerned Union must have a registration for a period of one year. A perusal to the Code of Discipline, which is reflected at Page 43 of 54 C/SCA/3525/2018 JUDGMENT page 65 of the petition compilation, is indicating that this prescription of code has been aimed at establishing cordial relation between management and workers on a voluntary basis, to facilitate harmony and for promoting constructive cooperation with a view to facilitate the free growth of Trade Unions and to maintain discipline in industry.
26. Now here in the instant case, the basic process of verification of membership is for the purpose of allowing respective Union to establish its majority and here is the case in which respondent No.3 claiming to be fulfilling such criteria and has clearly asserted in its affidavit that it has got such minimum strength of the membership. In this regard, a clear assertion is made in paragraph 7 on page 60 of the petition compilation that respondent No.3 - Union is having 15% membership in Ankleshwar Asset and has submitted earlier that out of around 1080 strength of workmen at Ankleshwar Asset, respondent No.3 - Union is having around 280 membership and has consistently raised collectively and individual issues of the workmen employed at Ankleshwar and to indicate that certain correspondence have also been asserted, which are pressed into service. So the defense which has been projected is that may be that ad-hoc body has Page 44 of 54 C/SCA/3525/2018 JUDGMENT been established on 25.09.2017, those workmen who tendered the resignation from the presiding month, membership fees of the concerned workmen were not deducted from their salary and as such a stand is taken up by respondent No.3 that as required under the policy, respondent No.3 has got enough strength to comply with the terms of Code of Discipline and, therefore, even if this process is to be undertaken asset wise then also by virtue of fulfilling the criteria minimum required, the respondent No.3 is eligible to participate and that has been clearly found by the authority while passing the order.
27. Considering the aforesaid situation and both provisions of policy of recognition of Union in ONGC as well as Code of Discipline, it appears that, if any dispute has arisen with regard to such decision, then a specific remedy is provided to ventilate this grievance. The petitioner has pointed out from the de-recognition of a Union clause mentioned at page 69 of the petition compilation, and thereby has contended that there is no concept of dual membership of Union but here is the case in which respondent No.3 has come out that after tendering resignation for the presiding month, no deduction was made and hence, this infirmity of no dual Page 45 of 54 C/SCA/3525/2018 JUDGMENT membership will not come in conflict. But in any case for the purpose of participating to establish the strength, this is not the sole criteria as found from the record and as such, it appears that the objections which have been raised by the petitioner are of no avail and when this be the circumstances, it appears to this Court that there shall be no interception in the process of such Act which is essentially only to ascertain the membership.
28. A categorical assertion is reflecting from the pleadings of both the sides that undisputedly even the petitioner has also participated at a different asset though having registered at Ankleshwar Asset and from the pleadings, it appears that since petitioner is the only Union at Ankleshwar Asset making an effort to see that no other Union can muster the strength at Ankleshwar Asset, as such, the Court would not like to hamper such process. In past, in the year 2009 also, pursuant to notification, a verification of membership of Unions operating in ONGC Western Region, through secret ballot was the centre of controversy but in that also, several recognized Unions have inter-se participated at Ahmedabad, Mehsana, Vadodara, Cambay, Ankleshwar and Jodhpur (Rajasthan) irrespective of their permanent office and Page 46 of 54 C/SCA/3525/2018 JUDGMENT as such simply because an ad-hoc branch is opened up by respondent No.3 - Union, in considered opinion of this Court, respondent No.3 cannot be prevented from participating especially when such Union has got its own registration since number of years and as per the assertion espouses the cause of employees of Ankleshwar Assets as well.
29. Since the aforesaid situation is encircled with several factual details, the same will have to be examined by competent authority at length, but prima facie, it appears that the impugned order reflects no basic infirmity. It appears to this Court that after disposal of writ petitions, the Regional Labour Commissioner (Central) Vadodara & Returning Officer has found both Unions as eligible to participate in verification of membership, through secret ballot in the establishment of ONGC Ankleshwar Asset, the same does not required any interference especially in exercise of extraordinary jurisdiction. This order in question appears to be after considering at length, the detailed objections and the submissions made by both respective Unions and after that has formulated an opinion which this Court would not like to substitute in the absence of any clinching issue. The Court found specifically that as per the Code of Discipline, Page 47 of 54 C/SCA/3525/2018 JUDGMENT respondent No.3 fulfill the criteria in the verification of membership process operating in establishment of ONGC Ankleshwar Asset it has been allowed such participation by petitioner as well as by respondent No.3. There appears to be no embargo that a temporary ad-hoc branch would be a circumstance to deprive respondent No.3 from its opportunity to participate.
30. The Court also found that verification of membership is an on-going routine process which appears to have been undertaken at a regular interval and as such, if this process which has been gone into is allowed to be intercepted, the same would frustrate the very object of such verification process and, as such, the Court would not frustrate the object of the said process to be undergone. Additionally, the Court is also of the opinion that if the objections which have been raised are to be considered and respondent No.3 will be prevented, the petitioner Union will continue to operate without allowing any union to establish its right of participation. There appears to be no embargo from over all consideration of the material on record which enables the Court to prevent respondent No.3 from effectively participating. It would be a right of respective union to Page 48 of 54 C/SCA/3525/2018 JUDGMENT establish its identity and impact and for that purpose, if respondent No.3 is inclined to participate to indicate its strength of membership, no such right is to be curtailed. For the reasons stated hereinabove and in view of the overall consideration, the Court found that the contentions which have been raised by learned advocate for the petitioner sound no confidence and are not tenable. Hence, the Court is of the opinion that no case is made out by the petitioner.
31. Writ Court has its own self-imposed limitation in adjudicating the disputed questions of fact and normally when a specific mechanism is provided to ventilate the grievance, such extraordinary jurisdiction has been avoided by series of decisions as propounded and as such keeping in view this inter se conflict between petitioner and respondent No.3 in the larger interest of justice and in the interest of the objectives of Code of Discipline and policy of recognition to be preserved, the Court is of the opinion that this inter se grievance between two Unions with regard to a mere process of verification of membership will be examined at the behest of an authority prescribed under the policy of ONGC establishment itself.
32. A perusal of the Code of Discipline has indicated Page 49 of 54 C/SCA/3525/2018 JUDGMENT that after the declaration of result by the Returning Officer, he will have to send a report of his findings in duplicate to the CLC and in case any objections are raised by any of the representatives of the participating Unions, if the Returning Officer found no merit upon examination at highest level, he may declare result and send report to the CLC. However, wherever the objections raised are found to be important and need examination and consideration at a higher level, the Returning Officer shall withhold the declaration of the result and communicate the objections raised by the Unions together with his comments to CLC and CLC then will enquire in to the matter and furnish a report to the Ministry giving his observations in this regard for decision of the Ministry. Now this mechanism undisputedly is reflecting from the instructions issued by CLC regarding secret ballot memorandum. Yet another clause which reflects is a clause contained under ONGC's Policy of Recognition to Unions reflecting on page 78 of the petition compilation onward and if the said policy of recognition also there is a clause, which reads as under:
"xix) It would be open to the contesting unions to object to the result of election or any Page 50 of 54 C/SCA/3525/2018 JUDGMENT illegality or material irregularity which might have been committed during the election before the Returning Officer. Such objection can only be raised after the election is over before the Returning Officer who will dispose of the same on merit. The appeal against his decision may be filed within a period not exceeding 7 days which shall be heard by the CLC and disposed of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law."
33. As such, it appears that all these issues which are inter se cropped up between the rival Unions can be examined by the competent authority of ONGC itself and as such the Court found that even if the petitioner is aggrieved by this process allowing respondent No.3 to participate then also petitioner is not a remedy-less and can ventilate its grievance before competent forum of ONGC establishment itself and when that be so and on this additional circumstances also the Court would like to allow the process of verification to be finalized and whatever objection which the petitioner is having, the same be permitted to be raised Page 51 of 54 C/SCA/3525/2018 JUDGMENT before the competent forum and as such keeping in view, the well-established proposition of law on this issue of alternative mechanism of resolving the grievance, the Court found that this disputed version of fact and the controversy would be better if the organization itself is examining and resolving.
34. This is more so in view of the fact that this last verification has taken place way back in 2009 and till filing of the petition in 2018, it appears that for obvious reason, an attempt is made to thwart the process, which would not be entertained particularly in view of the spirit of an order dated 22.09.2017 which has been passed, any interception by this Court in the present proceedings would frustrate the object of order as well and the process which has been delayed will further be dragged on and for that also, the Court is not inclined to exercise the extraordinary equitable jurisdiction.
35. The Court finds specifically that a competent authority has exercised its discretion vested in it and has passed an order after considering every details and objections of petitioner and after granting an opportunity a decision is taken, the Court would not like to disturb the same. Page 52 of 54
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36. While parting with the present judgment, the Court is clarifying that the opinion of this Court on aforesaid issues is tentative and appropriate authority will examine the same as and when brought before it without being influenced by the observations of this Court in the present order and since the secret ballot boxes are kept as it is, the Court is directing the authority to conclude the steps of verification process of membership on Ankleshwar Asset on asset basis by counting and assessing the votes which are in the ballot boxes and declare the result. The said exercise shall be undertaken by respondent authority at the earliest.
37. With these observations, the petition stands disposed of.
(A.J. SHASTRI, J) RADHAKRISHNAN K.V./ DHARMENDRA FURTHER ORDER After the pronouncement of the order, learned advocate Mr. Clerk has submitted that the operation of this order be suspended for a reasonable period so as to allow the petitioner to take appropriate steps. However, learned Page 53 of 54 C/SCA/3525/2018 JUDGMENT advocate Mr. Patel appearing for the respondent has resisted. But looking to the time gap, the Court is inclined to extend the time. Thus, the interim relief which is operative is extended for a period of two weeks from today.
(A.J. SHASTRI, J) Page 54 of 54