Kerala High Court
South Indian Plantation Workers Union vs K.D.H.P Company Private Ltd on 17 September, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934
RSA.No. 988 of 2011 ( )
-----------------------
AS.11/2011 of DISTRICT COURT,THODUPUZHA
OS.181/2008 of MUNSIFF COURT, DEVIKULAM
APPELLANT(S)/APPELLANTS/PLAINTIFFS:
-----------------------
1. SOUTH INDIAN PLANTATION WORKERS UNION,
REGISTERED NO.42 OF 1950, MUNNAR P.O.
REPRESENTED BY ITS PRESIDENT R.KUPPUSWAMY,
S/O.RAMASWAMY, NALLATHANNY ROAD, MUNNAR - 685 612.
2. R.KUPPUSWAMY,
S/O.RAMASWAMY, NALLATHANNY ROAD, MUNNAR - 685 612.
3. M.BALASUBRAMANIAN, S/O.MADASWAMY,
GENERAL SECRETARY, SOUTH INDIAN PLANTATION
WORKERS UNION, REGD.NO.42 OF 1950, FACTORY
DIVISION, GRAHAMSLAND ESTATE, MUNNAR - 685 612.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
--------------------------
1. K.D.H.P COMPANY PRIVATE LTD.,
REGISTERED OFFICE, KDHP HOUSE, MUNNAR - 685 612
REPRESENTED BY ITS INDUSTRIAL RELATION MANAGER -
MR.G.SOMANATHAN.
2. A.K.MANI, S/O.KADAKKARAJ, NADAYAR ROAD,
MUNNAR - 685 612
ADV. SRI.JOICE GEORGE - R2
ADV. SRI.M.NARENDRA KUMAR - R2
ADV. SRI.E.K.NANDAKUMAR - R1
ADV. SRI.K.JOHN MATHAI - R1
ADV. SRI.BENNY P.THOMAS - R1
ADV. SRI.P.GOPINATH MENON - R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
--------------------------------------
R.S.A. No.988 of 2011
--------------------------------------
Dated this the 17th day of September, 2012.
JUDGMENT
The Second Appeal arises from the judgment and decree of learned District Judge, Thodupuzha in A.S.No.11 of 2011 confirming the judgment and decree of learned Munsiff, Devikulam in O.S.No.181 of 2008 dismissing the suit as not maintainable.
2. The 1st appellant/1st plaintiff, as described in the plaint is the South Indian Plantation Workers' Union (for short, ' the SIPW Union'), stated to be registered under the Trade Unions Act, 1926 (for short, 'the Act') as No.42 of 1950. The appellants 2 and 3/plaintiffs 2 and 3 are stated to be the President and General Secretary, respectively of that Union. The 1st respondent is the KDHP Company (for short, "the Company') while, the 2nd respondent is stated to be the former General Secretary of the 1st appellant.
3. According to the appellants, the 2nd respondent was expelled from the post of General Secretary of the 1st appellant in 2000-2003. The 1st appellant is a registered trade union having its office at Munnar and representing the plantation workers in Kerala. It is further stated that the 1st respondent is the employer-Company under which majority of members of the 1st appellant-Union are working as labourers and supervisors. The 1st appellant is a Union (recognized by the Company). The 2nd respondent and his men RSA No.988/2011 2 claimed that election was held on 20.01.2006 to the post of office bearers of the 1st appellant. The said election was declared null and void and cancelled by the court as per judgment and decree in O.S.No.12 of 2006. That decision has attained finality. The 1st appellant has cancelled its affiliation with the Indian National Trade Union Congress (for short, 'the INTUC') on 27.04.2008. The 2nd respondent has no connection with the 1st appellant-Union which is not affiliated to the INTUC.
4. The grievance of appellants in short is that notwithstanding that the 1st appellant is a legal entity not affiliated to the INTUC, the 2nd respondent is claiming to be the Secretary of the said Union and representing the said Union with the 1st respondent. The 2nd respondent in that capacity attempted to collect money from the members of the Union. He is trying to get subscription from the 1st respondent-Company. In the circumstances, appellants filed the suit praying that the 1st respondent-Company may be restrained from accepting and acknowledging the 2nd respondent as representative of the 1st appellant and restraining the 1st respondent from disbursing subscription amount collected from the members of the 1st appellant - Union to the 2nd respondent. There is also a prayer that the 2nd respondent be restrained from accepting any contribution from the 1st respondent.
5. The 1st respondent - Company has contended that the suit has become infructuous since the three Unions, viz. SIPW Union (INTUC), DEW (AITUC) and DEE (CITU) working in the area of the 1st respondent have already RSA No.988/2011 3 given list of workers and employees supporting the said Unions and list is already read in the open muster. Objection of the individual workers are invited and scrutinized, lists are finalised and the above said three Unions are given cheque for the amount of union subscription of the year, 2008 for which they are eligible as per the finalised list. It is further contended that only recognized Unions having support of 15% or more of the workers are eligible to get union subscription collected and paid from the 1st respondent-Company. As such the appellants are not entitled to seek reliefs claimed in the suit. It is further contended that 1st respondent has recognized the above said Unions, they having secured the support of more than 15% of the workers of the 1st respondent. Hence, the 1st appellant which is not recognized in the above manner is not entitled to make any claim.
6. The 2nd respondent has contended that the suit is not maintainable since what emerges from the plaint averments is a trade union dispute as defined in the Act. It is contended that the suit is barred under Sec.9 of the Code of Civil Procedure (for short, "the Code"). Various other contentions are also raised by the 2nd respondent (which is not necessary to be extracted hereunder in view of the ground on which the trial court found that the suit is not maintainable).
RSA No.988/2011 4
7. The trial court has held that in substance, the suit concerns a dispute relating to recognition of the Unions. It is essentially a trade union or industrial dispute and hence the civil court has no jurisdiction to entertain the suit. Consequently the suit was dismissed. The above said finding is confirmed by the first appellate court.
8. The Second Appeal is admitted on the following substantial question of law:
"When the written statement filed by the first defendant Company shows that the second defendant is representing the the SIPW union affiliated to the INTUC and the plaintiff is an independent union, whether finding of the courts below that the suit is barred under Section 18 of the Act is sustainable, as the plaintiff is contending that the second defendant is not entitled to represent the plaintiff - union and is not disputing his right to represent the SIPW union (INTUC)?"
9. It is contended by the learned counsel for appellants that Sec.18 of the Act has no application to the facts of the case. It is pointed out that the said provision would apply only when a suit is filed against a registered trade union or any office bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union is a party. The learned counsel points out that the 1st appellant is a registered trade union while the suit is not against any registered trade union. The learned counsel RSA No.988/2011 5 submits that the suit is only against the 2nd respondent who only claimed to be an office bearer of the 1st appellant. In that circumstances, the suit is maintainable.
10. It is further contended that the objection the 2nd respondent has raised is only that the suit is barred under the provisions of the Act whereas, the courts below have held that the dispute in substance is one relating to the recognition of the Unions which under the provisions of the Industrial Disputes Act (for short, "the ID Act") is required to be settled by the forum provided under that Act. It is contended that there is no such plea raised by any of the respondents. It is also pointed out by the learned counsel that in the present case the question concerned is only whether the 2nd respondent is entitled to represent the 1st appellant with the 1st respondent - Company or receive amount by way of subscription as if he is the office bearer of the 1st appellant. Hence finding of the courts below that the suit is not maintainable is not correct, it is argued.
11. The learned counsel for respondents 1 and 2 contended that though subsequent to the filing of the suit, pursuant to Ext.B1 (Ext.A1) dated 11.08.2008, the 1st respondent conducted a referendum among its employees and in that referendum, the three unions mentioned in the written statement of the 1st respondent obtained recognition by securing support of more than 15% of the total employees of the 1st respondent. According to the learned counsel, RSA No.988/2011 6 one of the Unions which secured recognition is the SIPW Union (INTUC) of which the 2nd respondent is an office bearer and so far as that recognition stands, the 2nd respondent is entitled to represent the SIPW Union(INTUC) with the 1st respondent and receive subscription which is sought to be restrained in the present suit.
12. There appears to be some dispute between the 1st appellant and SIPW Union (INTUC) as to which is the Union originally registered as No.42 of 1950. It is admitted by both sides that concerning that dispute, O.S.No.119 of 2004 filed by the SIPW Union (INTUC) represented by the 2nd respondent for a declaration that it is the Union registered as per Registration No.42 of 1950 is pending decision.
13. The question whether which of the Unions, the 1st appellant or the SIPW Union (INTUC) represented by the 2nd respondent which is originally registered as No.42 of 1950 is a matter which the court concerned has to decide in O.S.No.117 of 2009 if it is otherwise competent to do so. Therefore, it is not necessary to go into that question in this appeal. Nor, has any of the courts below gone into that question. The said question is left open for decision in O.S.No.117 of 2009 if it arises for a decision and as provided under the law. RSA No.988/2011 7
14. Now, the question is whether the suit is maintainable for the reason found by the trial court that in substance, it is a dispute as to recognition of the Union by the 1st respondent? The said contention may not as such come within the purview of the Act, not to say Sec.18 of the Act. In T.C.C.Thozilali Union v. T.C.C.Ltd. (1982 KLT 125) referring to Sec.2(k) of the ID Act, this Court dealt with the power to recognise the unions. In paragraph 7, the dispute concerning the Company and the Union in that case was stated as whether in the discussions and deliberations in respect of, or relating to the workers to be held by the Company and the representatives of its workers, such of the Company's workers who are members of the Union should be permitted to be represented by, and/or to have as their bargaining agent, the Union. In paragraph 8, reference is made to the expression 'a recognition dispute' used by Lord Denning, in Beetham and another v. Trinidad Cement Ltd (1960 - 1 - AER
274). This Court stated that it was clearly a dispute between the Company and the Union. Reference was made to another decision in paragraph 9 of the judgment. In paragraph 11 it is stated that a trade union in claiming locus standi to represent its members in the employment of a management does so on behalf of the workers who are its members and therefore where such claim is not accepted by the employer and the employer refuses to recognize the union as those workers' representative and bargaining agent, a difference or dispute arises between the employer and such of his employees who are members of the union which claims the status of a bargaining agent. In paragraph 13, it is RSA No.988/2011 8 pointed out that dealing with the jurisdiction of the civil court in respect of matters falling under the ID Act, the Supreme Court in Premier Automobiles Ltd. v. K.A.Wadke (1975 2 LLJ 445) enunciated the following principles:
"i. 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.
ii. 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.
iii. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, the only remedy available to the suitor is to get an adjudication under the Act.
iv. If the right which is sought to be enforced is a right created under the Act, such as chapter VA, the remedy for its enforcement is either S.33C or the raising of an industrial dispute as the case may be." RSA No.988/2011 9
In paragraph 15, the result of the discussion is summarised. It is stated that the common or general law did not recognise collective bargaining or anybody that is entitled to represent the body of workmen in negotiations relating to employment, non-employment the terms of employment or with the conditions of labour of any person. The Legislature stepped in and enacted the Act which provides for registration of trade unions. The obligatory recognition of trade unions as bargaining agent of its members is unknown to law - both common law and statute law and the recognition by an employer of a trade union as a representative of its members and as their bargaining agent is a matter of volition on the part of the employer. It is held that recognition dispute is an industrial dispute, recognition is a matter of volition on the part of the employer, 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 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 general or common law. The civil court was found to have no jurisdiction to entertain a suit involving recognition dispute. In the light of the above statements the suit involving recognition dispute cannot be entertained by the civil court. The same view is taken in Kerala Minerals Employees Congress v. Asst. Labour Commissioner & Others (1983 KLT 176) and Secretary, Meters Staff Association v. United Electrical Industries Ltd. (1984 KLT 888).
RSA No.988/2011 10
15. As per the above decisions, the question of recognition and dispute regarding recognition is not something available or recognised by the general law so that, in the absence of an exclusionary provision, the jurisdiction of the civil court under Sec.9 of the Code cannot be said to be ousted. It is a right conferred on the 1st respondent - Company in the matter of recognition of the Unions representing its employees. That being not a common law right or a right under the general law, the question of invoking jurisdiction of the civil court under Sec.9 of the Code does not arise in so far as a forum is prescribed in the ID Act for settlement of dispute relating to recognition.
16. In view of the above position of law stated in the decisions above referred, the question is whether the present suit is maintainable? No doubt, the suit was filed even before the 1st respondent recognised the three Unions including the SIPW Union (INTUC) of which the 2nd respondent is the office bearer. Ext.B1 is the notice issued by the 1st respondent on 11.08.2008 to the DEW Union (AITUC), DEW Union (CITU) and the 2nd appellant and the 2nd respondent (representing the SIPW Union (INTUC) referring to whether it is affiliated to the INTUC or not). It is pointed out by the learned counsel for the appellants that in Ext.B1, there is no reference that the 2nd respondent is representing the SIPW Union (INTUC), instead; it would appear from Ext.B1 that the notice is issued to the 2nd appellant and the 2nd respondent as representing the SIPW Union. It is submitted by the learned counsel that the question whether the registration No.42 of 1950 is available to the SIPW (INTUC) is a RSA No.988/2011 11 matter yet to be decided in O.S.No.117 of 2009 and hence as things stand now, that registration should be for the 1st appellant. It is also pointed out by the learned counsel that even in Ext.B1 (Ext.A1), it is stated by the 1st respondent that there was dispute among the SIPW Union and it is in the circumstance that the 1st respondent has decided to conduct a referendum to decide which of the Unions representing its employees have the support of not less than 15% of the membership.
17. May be the referendum and the consequent recognition were after the institution of the suit. It is admitted by both sides that the 1st appellant had not taken part in the referendum. It is also not disputed that among the three Unions recognised by the 1st respondent having secured the support of more than 15% of the employees is the SIPW Union (INTUC), represented by the 2nd respondent.
18. Reference has to be made to the plaint to understand whether the dispute really is one regarding recognition or relating to recognition. The claim made by the appellants in the plaint is that the 2nd respondent has no right or authority to represent the 1st appellant with the 1st respondent or, receive subscription from the 1st respondent. It is also their case that the 1st respondent has no right to pay subscription amount to the 2nd respondent. RSA No.988/2011 12
19. May be, the recognition took place during the pendency of the suit. But, there is no case that there was any order of injunction restraining the 1st respondent from conducting the referendum. Therefore, nothing prevented the 1st respondent from conducting the referendum. The question of 2nd respondent representing the employees before the 1st respondent arises only when the Union of which the 2nd respondent is an office bearer is recognised by the 1st respondent. If that be so, it is clear that the dispute pertains to recognition of the SIPW Union (INTUC) represented by the 2nd respondent. In short, the challenge is to the recognition of the SIPW Union (INTUC) represented by the 2nd respondent. In that view of the matter, courts below are right in holding that the suit is not maintainable.
20. I make it clear that I have not gone to the question whether the referendum conducted by the 1st respondent or recognition of the SIPW Union (INTUC) is correct or not. I also make it clear that the said question could be raised before and decided by the appropriate forum as provided under law if the aggrieved party has a right to do so. I am also not going into the question as to what is the consequence of the recognition of the SIPW Union (INTUC) by the 1st respondent if ultimately it is found by the appropriate authority that the said Union is not a registered Union.
21. The learned Sub Judge, Thodupuzha is directed to expedite trial and disposal of O.S.No.117 of 2009.
RSA No.988/2011 13
22. The substantial question of law framed is answered as above.
Resultantly,
i. With the observations made above, the second
appeal is dismissed.
ii. Parties shall suffer their cost in this appeal.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
cks