Kerala High Court
The Cochin Refineries Employees ... vs The Bharat Petroleum Corporation Ltd on 23 August, 2016
Author: Dama Seshadri Naidu
Bench: P.N.Ravindran, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
WA.No. 1860 of 2016 IN WP(C).33441/2010
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 33441/2010 of HIGH COURT OF KERALA DATED
23-08-2016
APPELLANT/PETITIONERS IN WPC.:
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THE COCHIN REFINERIES EMPLOYEES ASSOCIATION
(REG.NO.120/67) AMBALAMUGAL,
KOCHI-682302, REPRESENTED BY ITS GENERAL SECRETARY,
P.N.SURENDRAN NAIR.
BY ADV. SRI.C.S.AJITH PRAKASH
RESPONDENTS/RESPONDENTS IN WPC.:
--------------------------------
1. THE BHARAT PETROLEUM CORPORATION LTD,
REPRESENTED BY ITS CHAIRMAN AND
MANAGING DIRECTOR, BHARAT BHAVAN, 4 & 6,
CURRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI-400 001.
2. THE DIRECTOR (HR)
BHARAT PETROLEUM CORPORATION LTD.,
BHARAT BHAVAN, 4 & 6, CURRIMBHOY ROAD,
BALLARD ESTATE, MUMBAI-400 001.
3. THE GENERAL MANAGER (HR),
BHARAT PETROLEUM CORPORATION LTD,
KOCHI REFINERY, AMBALAMUGAL,
KOCHI-682302.
4. THE REFINERY EMPLOYEES UNION (KRL),
REPRESENTED BY ITS GENERAL SECRETARY,
AMBALAMUGAL, KOCHI-682302.
5. COCHIN REFINERIES WORKERS ASSOCIATION,
REG.NO.7-82/91, VPP 1/427, AMBALAMUGAL,
COCHIN-682302, REPRESENTED BY ITS JOINT SECRETARY.
6. KOCHI REFINERIES WORKERS UNION
REG.NO.7-10/05, AMBALAMUGAL-682302,
REP. BY ITS GENERAL SECRETARY,
AMBALAMUGAL, KOCHI.
R1-R3 BY ADV. SRI.P.GOPINATH
R1-R3 BY ADV. SRI.P.BENNY THOMAS
R1-R3 BY ADV. SRI.K.JOHN MATHAI
R BY SRI.M.GOPIKRISHNAN NAMBIAR
R BY SRI.P.RAMAKRISHNAN
R BY SRI.THAMPAN THOMAS
R BY SRI.TOM K.THOMAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2016,
THE COURT ON 21.12.2016 DELIVERED THE FOLLOWING:
'CR'
P.N. RAVINDRAN & DAMA SESHADRI NAIDU, JJ.
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Writ Appeal No.1860 of 2016
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Dated this the 21st day of December, 2016
JUDGMENT
Dama Seshadri Naidu, J.
In Perspective:
A majority trade union in an industry asserts its primacy as the sole negotiating-agent in the matters of, say, long-term settlements. The management issued revised norms stipulating which trade union can have that privilege. The majority trade union has a grievance that the management has been violating the eligibility criteria fixed by itself and involving even minority trade unions in the industrial parleys. The question is, can the management involve the minority unions, too, in the negotiations? Or, can the majority union be the sole negotiating agent? We are W.A.No.1860 of 2016 2 called upon to answer these questions. But before that, a jurisdictional question demands an answer: Is the issue raised by the majority union an industrial dispute, for resolving which there is an efficacious redressal mechanism provided under the Industrial Disputes Act? We answer in the affirmative.
Brief Facts:
2. Kochi Refineries Limited (`KRL'), established in 1966, got merged in Bharat Petroleum Corporation Ltd. (`BPCL'), a public-
sector undertaking, in 2006. KRL had a handful of registered trade unions collectively bargaining for their member-employees. The percentage of their membership varied: Appellant Trade Union had
--and is still said to have--the largest membership base, followed by the respondent 4, 5, and 6 unions, though not strictly in that order. Even after KRL's amalgamation with BPCL, these trade unions continued their activities, with their membership fluctuating, however.
W.A.No.1860 of 2016 3
3. In KRL, as per its norms, registered trade unions with 15% membership enjoyed the status of registered Trade Unions, apart from being the acknowledged negotiating agents. In fact, the appellant, the 4th respondent, and the Cochin Refineries Workers Association met the criteria fixed by KRL. Before KRL's amalgamation, Kochi Refinery Workers Union (`KRWU') was the last trade union registered (in 2005). But it had neither of the statuses.
4. At one stage, the appellant disputed the 4th respondent's membership base. To vindicate its claim, it filed W.P.(C) No.32770 of 2003, which is still pending.
5. When BPCL took over, it revised its norms for recognizing trade unions to be the negotiating agents for the workmen, especially, concerning "long-term settlements and other matters of significance." The revised norms were circulated among the Trade Unions through Circular dated 22.5.2008 (Ext.P1). One of the W.A.No.1860 of 2016 4 principal stipulations is that only Trade Unions having not less than 25% membership are eligible to be the recognized unions and negotiating agents.
6. The appellant union's members constitute 36% of the Kochi Refinery's workforce. So it has claimed "continued recognition" as a negotiating agent as per Ext.P1. Asserting its right and reiterating its claim, the appellant union submitted Ext.P2 representation to the 1st respondent on 11.05.2009. In response to appellant's claim, the 3rd respondent issued a Circular dated 01.07.2009 (Ext.P3): the circular contained revised norms for conferring the status of negotiating agent on Trade Unions. Ext.P3 norms are similar to those in Ext.P1. The appellant union, the 4th respondent Union, the Cochin Refineries Workers Association, and the Kochi Refinery Workers Union submitted their declarations as prescribed in Ext.P3. The percentage of membership is as follows:
appellant union-36%; 4th respondent union-15%; the Cochin W.A.No.1860 of 2016 5 Refineries Workers Association-33%; and Kochi Refinery Workers Union-16%.
7. Given its membership base, the appellant union has claimed primacy. But it has a grievance: BPCL-Kochi Refinery's management continued to recognize the 4th respondent and the Cochin Refinery Workers Association, apart from the appellant, as negotiating agents--despite the changed norms that mandate 25% minimum membership.
8. In 2009, the Refinery Workers Association filed W. P. (C) No.34399 of 2009 challenging the norms in Ext.P3--that is, 25% membership for recognition; it wanted the employer to recognize it as well. This Court, per a learned Single Judge, dismissed the Writ Petition (through Ext.P4 judgment) preserving the petitioner's right to raise an industrial dispute in that regard. The writ appeal, too, ended in failure: WA No.179 of 2010 was dismissed through the judgment, dated 08.02.2010 (Ext.P5).
W.A.No.1860 of 2016 6
9. The appellant union has nursed a grievance that though the 4th respondent did not meet the 25%-membership criterion, the management continues to permit the 4th respondent to participate in negotiations concerning long-term settlements and other issues of significance. On 05.10.2010, the appellant union represented (through Ext.P8) to BPCL, the employer, against the 4th respondent's participation in the negotiations.
10. Aggrieved at what is said to be the employer's inaction, the appellant union filed W.P. (C) No.33441 of 2010.
W.P. (C) No.33441 of 2010:
11. Through the judgment, dated 23.08.2016, a learned Single Judge dismissed the writ petition: the prerogative to call majority unions to the negotiating table is on the management, so as to avoid "solitary and disparate" claims being raised, "which do not affect the majority workmen." If the management, however, calls even a trade union which does not have the membership base as W.A.No.1860 of 2016 7 required under Ext.P3, it cannot still be said that the management has acted illegally. The judgment further holds that the appellant union's right is to insist that the management should consult it, but not to insist that the management should consult it alone.
Writ Appeal:
12. In the writ appeal, the appellant union has taken various pleas. It has frontally attacked the judgment--especially, the observation that the appellant union cannot prevent the management from consulting other unions not having the status of "a negotiating agent". According to the appellant union, the management cannot deviate from the policy formulated by itself.
The practice adopted by the management in allowing the minority unions to participate in the negotiations, according to the appellant union, is an unfair trade practice.
13. The management's action in letting the minority unions participate in discussing, for example, any long-term settlement is W.A.No.1860 of 2016 8 violative of its undertaking given before this Court as has been recorded in Ext.P4 judgment, asserts the appellant. In a conspectus, the appellant union would have us see the purpose behind Ext.P3 policy: avoiding the "multiplicity of trade unions" in an industrial sector; more particularly, in public sector undertakings.
14. The respondents--particularly, the 3rd and 4th respondents
--have taken many countervailing pleas. Of primary importance is the plea that the writ petition is not maintainable. According to them, the appellant's alleged grievance is an industrial dispute. And there is an efficacious alternative dispute-resolution forum for this:
the Industrial Tribunal.
15. Heard Sri C. S. Ajith Prakash, the learned counsel for the appellant; Sri Benny Thomas, the learned Standing Counsel for the respondents 1 to 3 (the Management); and Sri Ramakrishnan, the learned counsel for the 4th respondent, apart from perusing the record.
W.A.No.1860 of 2016 9 Issues:
I. Is BPCL a company constituted by a statute? II. Is the Writ Petition maintainable? Discussion:
Is BPCL a company constituted by a statute? In other words, is it a statutory-body or a mere corporate-entity?
16. Usually, the technical plea of maintainability, going to the root, needs to be taken up as a preliminary issue. Once the said issue non-suits the petitioner, it obviates the need for rendering any findings on merits.
17. Further, as we resolved to determine the preliminary issue first and to consider the merits of the matter--if the lis could survive the preliminary objection--thereafter, we touched upon the factual controversy only to the extent necessary. BPCL - Its Origin:
W.A.No.1860 of 2016 10
18. Incorporated in Scotland in 1886, the Burma Oil Company became an important player in the South Asian market that grew out of an enterprise named Rangoon Oil Company (formed in 1871). It initially aimed at refining crude oil produced from primitive hand-dug wells in Upper Burma. In 1886, first oil well was drilled in India, at a place near Jaypore, Upper Assam. Later in 1889, the Assam Railway and Trading Company struck oil at Digboi, Assam. It marked the beginning of oil production in India.
19. While discoveries were being made and industries expanded, John D. Rockefeller (USA) and his business associates acquired control over numerous refineries and pipelines. With these acquisitions under their belt, they formed the Standard Oil Trust - a giant in its own right.
20. In the 1920s three oil giants--Royal Dutch, Shell, and Rothschild's--came together and formed a single organisation, W.A.No.1860 of 2016 11 Asiatic Petroleum, to market petroleum products in South Asia. In 1928 Asiatic Petroleum (India) joined hands with the Burmah Oil Company, an active producer, refiner, and distributor of petroleum products, particularly, in Indian and Burma. They formed the Burmah-Shell Oil Storage and Distributing Company of India Limited.
21. On 15th December 1951, the Burmah Shell Group signed an agreement with the Government of India to build a modern refinery at Trombay, Bombay. Soon afterwards, on 3rd November 1952, Burmah Shell Refineries Limited was incorporated as a private limited company under the Indian Companies Act*. On 24 January 1976, the Burmah Shell was taken over by the Government of India to form Bharat Refineries Limited. On 1st August 1977, it was renamed as Bharat Petroleum Corporation Limited.
*https://bharatpetroleum.com/ accessed on 20.12.2016 W.A.No.1860 of 2016 12 CRL - Its Origin:
22. Government of India initially established the Kochi Refinery as a joint venture in collaboration with Phillips Petroleum Corporation, USA. The company was formally registered as Cochin Refineries Ltd (CRL) in 1963 at Ernakulam; it became operational in 1966. In 2006, CRL was acquired by BPCL.
23. From the above history, it is evident that neither CRL nor BPCL have been created under a statute; on the contrary, they were created under the Indian Companies Act, 1956. To be explicit, BPCL is a company with no statutory trappings, though owned by the Government of India. With merger, now, CRL has ceased to be an entity; the employer is BPCL.
II. Is the Writ Petition Maintainable?
24. The object of the Industrial Disputes Act, as its preamble indicates, is to provide for the investigation and settlement of industrial disputes. The Act envisages, holds the Supreme Court in W.A.No.1860 of 2016 13 Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke1, collective bargaining and contracts between union representing the workmen and the management. After examining the expression "industrial dispute" as defined in Section 2 (k) of the Act, the Apex Court holds that those disputes are outside the realm of the common law or the Indian law of contract. Different authorities have varied and extensive powers in the matters of settlement and adjudication of industrial disputes. The Courts have consistently recognized that the powers of the authorities deciding industrial disputes under the Act are very extensive--much wider than the powers of a civil court while adjudicating a dispute which may be an industrial dispute.
25. In Doe v. Bridges2 Lord Tenterden, C.J. speaks of the exclusionary jurisdiction: "Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a 1(1976) 1 SCC 496 2(1831) 1 B & Ad 847, as quoted in Premier Automobiles Ltd. W.A.No.1860 of 2016 14 general rule that performance cannot be enforced in any other manner."
26. After elaborately discussing the jurisdictional nuances, Premier Automobiles summarizes the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.
27. Premier Automobile, however, enters a caveat in relation to Principle No. 2: there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability only under the W.A.No.1860 of 2016 15 general or common law but not under the Act. Such a contingency may arise regarding, for example, the dismissal of an unsponsored workman; in view of the provision of law in Section 2-A of the Act, it will be an industrial dispute, even though it may otherwise be an individual dispute. Civil courts, therefore, will have hardly an occasion to deal with the cases falling under Principle No. 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No. 3 stated above. This Court, earlier, has an occasion to examine the precedential contours of Premier Automobiles.
28. In T.C.C. Thoziali Union v. T.C.C. Ltd.3, this Court, per a learned Single Judge, has percipiently presented the legal principle that instructs what a trade dispute is: A trade union, in claiming locus standi to represent its members in the employment of a company, does so on behalf the workers who are its members. If 31982 KLT 125 W.A.No.1860 of 2016 16 the employer refuses to accept a claim or to recognize the union as its members' representative and bargaining agent, a difference or dispute is said to have arisen between the employer and such of its employees who are members of the union which claims the status of a bargaining agent. When such difference is "connected with the employment, non-employment, the terms of employment, or with the conditions of labour, of any person," it is an industrial or trade dispute.
29. In the end, T.C.C. Thoziali Union has summarized the principles: (i) ''recognition dispute" is an industrial dispute; (ii) recognition is a matter of volition on the employer's part; (iii) a trade union has neither common-law right nor statutory right which enables and entitles it to compel an employer to give recognition to it as the bargaining agent of its members; and (iv) since it has no such common law right, a "recognition dispute", cannot be said to be one emanating from, and emerging out of, any right under the W.A.No.1860 of 2016 17 general common law; and, therefore, (v) principle No.2 stated by the Supreme Court in the Premier Automobiles case is not attracted to a "recognition dispute", no matter that a trade union has no such right under any statute, either.
30. In a company incorporated under the Indian Companies Act, there existed two rival trade unions. Though initially the company initially entered into agreements involving both the unions, the last in the series was entered into with one, to the exclusion of the other. The excluded union filed a writ petition. When the matter reached the Apex Court, in Praga Tools Corpn., v. C. A. Imanual4 it held that the writ obviously was claimed against the company and not against the conciliation officer regarding any public or statutory duty imposed on him by the Act.
31. Praga Tools, first, acknowledges that as per Article 226 every High Court will have power to issue to any person or 4AIR 1969 SC 1306 W.A.No.1860 of 2016 18 authority orders and writs including writs, like habeas corpus, mandamus, and so on, for enforcing any of the rights conferred by Part III of the Constitution and for any other purpose. But a mandamus lies only to secure the performance of a public or statutory duty. And the entity that applies must have sufficient legal interest. So an application for mandamus will not lie for an order of reinstatement to an office essentially of a private character; nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. Praga Tools quotes with approval the dicta of Sohan Lal v. Union of India5 and Regina v. Industrial court.6
32. Further, quoting from Halsbury's Laws of England7, Praga Tools observes that a mandamus can be issued, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed 51957 SCR 738 6(1965) 1 QB 377 7(3rd ed.), Vol. II, p. 52 and onwards W.A.No.1860 of 2016 19 and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute to fulfill public responsibilities.
33. On facts Praga Tools holds that the company being a non- statutory body incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it by a statute regarding which enforcement could be sought through a mandamus. Nor had its workmen any corresponding legal right to enforce any such non-statutory, or private, or contractual obligation.
34. Concluded that BPCL is a company pure and simple, not established by a statute; the inevitable corollary is that the cause espoused in the writ petition involving the management and a section of its employees can only be regarded as an industrial dispute amenable to adjudicatory mechanism provided under the W.A.No.1860 of 2016 20 Industrial Disputes Act. And the Act has efficacious dispute resolution mechanism as has been held in Praga Tools Corpn.
35. So we hold the appellant union cannot seek a public law remedy by invoking Article 226. But it can, if desirous, eminently ventilate its grievances before an Industrial Tribunal. It emerges that the 4th respondent has already approached a conciliation officer complaining about Ext.P3 regulations: the percentage of membership and the status of being a negotiating agent. Nevertheless, the appellant union suspects an undesirable bonhomie between the management and the 4th respondent, to the exclusion of all other trade unions. It suspects that the 4th respondent will not pursue the petition with vigour.
36. Considering the totality of circumstances, we hold that the appellant union is free to raise an industrial dispute concerning what it felt to be discriminatory attitude displayed by the management in implementing Ext.P3 regulations. If the issue W.A.No.1860 of 2016 21 reaches the Industrial Tribunal, we hope, it will deal with the dispute with dispatch.
Subject to the above observations, we dismiss the writ appeal. No order on costs.
Sd/-P.N.RAVINDRAN
JUDGE
sd/- DAMA SESHADRI NAIDU
JUDGE
css/ true copy
P.S.TO JUDGE