Orissa High Court
All Orissa State Bank Officers' ... vs Union Of India (Uoi) And Ors. on 24 November, 1998
Equivalent citations: 1999(I)OLR271
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. All Orissa State Bank Officers' Association, an Association of the Officers of the State Bank of India (hereinafter referred to as the 'Bank'), Bhubaneswar Circle registered under the Trade Unions Act, 1926 has filed this writ application inter alia alleging unjust, unfair, unreasonable and hostile treatment to their members, claiming treatment at par with the office bearers of the recognised Association, namely, State Bank of India Officers' Association and for laying down norms for guidance in the matter of dealing with unrecognised registered Associations.
2. Admittedly the petitioner-Association is registered under the Trade Unions Act, but not recognised by the Bank. According to the Bank, the petitioner-Association is not entitled to get recognition as they do not satisfy the criteria laid down by the Verification of Membership and Recognition of Trade Unions Rules, 1994, framed by the State of Orissa. In the writ application, it has been alleged that the management of the Bank has been following a policy of hostile discrimination by victimising the officers belonging to petitioner's Association under pressure and at the instance of the rival recognised Association in order to break the petitioner-Association. It has been further alleged that although as far back as in 1982 the petitioner-Association submitted a list of its members and claimed recognition, but in spite of recommendation of the local Head Office, the Central Office at Bombay did not take any decision and started adopting unfair labour practice to encourage defection from the petitioner's Association to the recognised Association. According to the petitioner, the members of the State Bank of India Officers' Association are being shown illegal and undue favour in the matter of posting, transfer, entertainment of representations while the members of the petitioner-Association are being put to various inconveniences in a systematic and calculated manner. Several instances have been mentioned in the writ application in support of such allegation of hostile discrimination and unfair practice.
3. In this connection the writ petitioner has referred to a Staff Circular No. 91 of 1987 dated November 13, 1987 (Annexure-D/3 to the counter affidavit on behalf of opposite party No. 3) to show that the management of the Bank has asked its officers of Bhubaneswar Circle not to enter into any dialogue or to accept any representation from the office bearers of the petitioner-Association. Paragraph 2 of the aforesaid staff circular No 91 of 1987 is reproduced below :
"Having regard to very serious developments as brought out in our Staff Circular No. (a) 84 and 90 of 1987, it will not be in order for any Bank functionary to enter into any dialogue or accept any representation from the office bearers of the unrecognised All Orissa State Bank Officers' Association in the Circle, even in matters pertaining to individual grievances. In case the representative of the above unrecognised Association resort to any coercive methods like Dharna, Gherao etc. decisions obtained, if any, under such circumstances would be deemed to have been taken under duress and such decisions shall not be binding on the Bank. Needless to add that the cases of officers indulging in such un-warranted actions would be dealt with sternly and suitable disciplinary action would be taken against them."
4. The Chief General Manager, State Bank of India, local Head Office at Bhubaneswar has filed counter affidavit denying the allegations of discrimination, arbitrary treatment or unfair practice. The opp. party No. 3 has referred to certain special rights and privileges allowed to the office bearers of the recognised Trade Union/Associations and has stated that only those rights and privileges are being extended to the office bearers of the State Bank of India Officers' Association. He has further stated that the unrecognised Association cannot be treated at par with the recognised Union.
5. Admittedly, the verification of membership and recognition of Trade Unions Rules, 1994 (hereinafter referred to as the 'Verification Rules') framed by the State of Orissa are applicable to the petitioner-Association. Under Rule 18 of the Verification Rules the Union which secures not less than 30% of the total number of votes polled shall be entitled to be recognised. Rule 24 of the Verification Rules deals with the rights of the unrecognised Union. Rule 24 is quoted below :
"24. (a) Rights of Unrecognised Union. - To meet and discus with the employer or any person appointed by him in that behalf the grievances of any individual member relating to his service conditions.
(b) To appear on behalf of its members employed in the establishment in any domestic or departmental enquiry held by the employer and before the Conciliation Officer/Labour Court/ Industrial Tribunal or Arbitrator."
Rules 21 and 23 enumerate the rights of and facilities for recognised Unions. It is ex facie clear from the aforesaid Rules that a recognised Union has been conferred certain special rights and facilities and an unrecognised union cannot claim treatment at par with a recognised Union. However, an unrecognised Union is entitled to the limited rights conferred on them by the Verification Rules and the management of the Bank has no power or authority to deny such rights.
6. The petitioner-Association is still an unrecognised Union. In the writ application the petitioner has claimed that more than 30% of the Officers working in Bhubaneswar Circle of the Bank are its members, but the management of the Bank has disputed the said claim. The Verification Rules contain a method and machinery for verification of the membership of a Union. The petitioner-Association is free to approach the authority prescribed under the Verification Rules to establish their claim. It does not appear from the materials on record that any such step has been taken by the petitioner-Association. It is not possible for this Court in exercise of writ jurisdiction to determine any such dispute over membership. When a statutory machinery is available it is for the petitioner-Association to avail of that machinery in accordance with the prescribed procedure.
7. A recognised Union is accepted as a Union having the competence and numerical support to represent and to speak on behalf of all workmen even though all the workmen may not be members of that recognised Union. An unrecognised Union has no right to represent the entire body of workmen, but it has the right to speak for or represent workmen, who are its members individually or as a group. In case of any conflict between the demands of recognised Union and the demands of an unrecognised Union the management can accept the views of the recognised Union but the management cannot deny or refuse to entertain any representation from or to enter into any dialogue or discuss with the unrecognised Union is respect of grievance of any individual workman or a group of workmen belonging to the unrecognised Union. Acceptance of a demand and discussion over a demand is not the one and same thing. Right of raising grievance and discussion is a fundamental right and cannot be taken away totally. The Supreme Court in Balmer Lawrie Workers' Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd. (AIR 1985 Supreme Court 311) has made the position very clear. It has held :
"......Forming an Association is entirely independent different from its recognition. Recognition of a union confers rights, duties and obligations. Non-conferring of such rights, duties and obligations on a union other than the recognised union does not put it in an inferior position nor the charge of discrimination can be entertained. The members of a non-recognised association can fully enjoy their fundamental freedom of speech and expression as also to form the association.
The legislature has in fact taken note of the existing phenomenon in trade unions where there would be unions claiming to represent workmen in an undertaking or industry other than recognised union. Sec. 22 of 1971 Act confers some specific rights on such non-recognised unions, one such being the right to meet and discuss with the employer the grievances of individual workman. The Legislature has made a clear distinction between individual dispute affecting all or a large number of workmen. In the case of even an unrecognised union it enjoys the statutory right to meet and discuss the grievance of an individual workman with employer. It also enjoys the statutory right to appear and participate in a domestic or departmental enquiry in which its member is involved. This is statutory recognition of an unrecognised union. The exclusion is partial and the embargo on such unrecognised union or individual workman to represent workmen is in the larger interest of industry, public interest and national interest. Such a provision could not be said to be violative of fundamental freedom guaranteed under Art. 19(1)(a) or 19(1)(c) of the Constitution."
Although Mr. Rath has cited several other decisions, but in view of the clear pronouncement by the Supreme Court in Balmer Lawrie Workers' Union case (supra) we do not think it necessary to discuss other decisions.
8. As already stated that an unrecognised Union has been conferred certain limited rights in Rule 24 of the Verification Rules. The Staff Circular No. 91 of 1987 is on the face of it contrary to the Rule 24 of the Verification Rules and also violative of the rights forming the basis of a dormatic society. The management of the Bank cannot direct its offices not to enter into any dialogue or accept any representation from the unrecognised Union even in matters pertaining to individual grievances.
9. Mr. Dora, learned Advocate appearing for the Bank and its management fairly submits that there cannot be any direction contrary to Rule 24 of the Verification Rules. Thus the direction contained in para 2 of the Staff Circular No. 91 of 1987 is arbitrary, contrary to Rule 24 of the Verification Rules and liable to be set aside.
10. It is true that an unrecognised union is not entitled to be treated at par with a recognised Union, but that does not authorise the management of the Bank to indulge in any kind of undue discrimination or unfair labour practice. The management cannot be permitted to take side and indulge in any activity designed to harass or disrupt one Union and to promote another Union, The management is under an obligation to act fairly impartially and to extend to the recognised union only those benefits which are available under the law or its declared policy. The management cannot deliberately pursue a policy designed to create a situation which makes the fundamental right of formation of an association and freedom of expression nugatory or illusory. It is well settled that freedom of association includes right to form an association and to continue such association. The management has certain discretion in and while exercising discretion it has to act fairly, honestly and in the interest of the organisation without violating the fundamental rights and/or other statutory right of the employees or their associations. Any order, decision, action or inaction of the management which is arbitrary or unreasonable or unfair or the result of a colourable exercise of power is liable to be struck down being violative of Articles 14 and 16 of the Constitution even if such order, decision or inaction has the approval of a recognised union. The management should be careful to ensure that none of its acts amounts to oppression of the unrecognised union or its members at the instance or under undue pressure of the recognised union.
11. However, on the basis of the materials produced before us, we are unable to hold that there is any deliberate or consistent policy of discrimination or unfair labour practice against the members of the petitioner Association. In the affidavits filed on behalf of the management almost all the instances given by the petitioner-Association have been specifically dealt with and answered. There is no sufficient material from which we can conclusively hold any systematic victimisation or harassment of the members of petitioner-Association.
12. If in any individual case an order of transfer or posting is met in accordance with the general transfer policy of the Bank or arbitrary or capricious, the person affected or the Union to which the affected person owes allegiance is free to challenge the same in appropriate proceeding in appropriate forum. Each officer of the Bank whether he belongs to the recognised union or unrecognised union is entitled to be treated in a just, fair and reasonable manner. The management of the Bank has the freedom of framing its policy without violating the fundamental constitutional rights or statutory rights of its employer. Once framed, the management of the Bank is required to follow its own policy and cannot deviate therefrom and act in a partisan manner or with hostile animosity. The Bank is to ensure and take care that its officers belonging to any union or unions are not always posted in and around advantageous places. The management of the Bank should conduct itself in a manner which will not leave any reasonable impression or apprehension about its impartiality and objective approach. It is needless to mention that the members of the recognised association are not entitled to any other privilege or facility excepting those specifically and expressly conferred by law or the Bank's policy. Before us the management of the Bank has also submitted that excepting the specified office members of the recognised Association or Union all other officers of the Bank are entitled to be treated equally in accordance with the Bank's administrative policy irrespective of their Union affiliation.
13. For the foregoing reasons we set aside paragraph 2 of the Staff Circular No. 91 of 1987 if the same is still in force and direct the opposite parties to confer such rights on the petitioner-Association as are available to them under Rule 24 of the Verification Rules.
The Management of the State Bank of India are also directed to keep in mind the observations made in this judgment while dealing with its employees, and officers and their Unions, recognised or unrecognised.
14. The writ application is allowed to the extent indicated above.
R.K. Patra, J.
15. I agree.