Calcutta High Court
Uco Bank Employees' Association & Anr vs Uco Bank & Anr on 4 March, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present :
The Hon'ble Justice Soumen Sen
W.P. 464 of 2013
UCO Bank Employees' Association & Anr.
Versus
Uco Bank & Anr.
For the petitioners : Mr. Soumya Majumdar,
For the respondents : Mr. Sabyasachi Choudhury,
Mr. Rajarshi Dutta, Mr. Sourjya Roy Heard on : 07.02.2014, 17.02.2014, 18.02.2014, 25.02.2014 Judgment on : 4th March, 2014 Soumen Sen, J.:- The Industrial Relation Policy for Workmen Staff in so far as it excludes the representation of all other recognized unions, save and except, the majority union during negotiation, is the subject matter of challenge in this writ petition.
The petitioner No.1 is a registered trade union. The grievance of the petitioners appear to be that although, the petitioner No.1 is a registered majority trade union as on date on the basis of the check off system and would be entitled to be present during negotiation in terms of the present policy; however, the petitioners have challenged the policy on the ground that the decision to negotiate at the apex level on policy matter with the majority union is unreasonable and against the spirit of the Sastry Award. Instead of living upto the object the said policy seeks to achieve, it, in fact, downplays and militates against such basic object. The recognition of a trade union without negotiation is illusory. The very object of collective bargaining would be illusory if the other unions are left out of negotiation are the other objections raised by the petitioners against the policy.
Mr. Soumya Majumder, learned Counsel representing the petitioners submits that the said policy is arbitrary and discriminatory. In order to demonstrate arbitrariness and unreasonableness of the policy, he has referred to the Draft Industrial Relation Policy of the Bank, dated March 16, 2012, being Annexure P-5 to the writ petition. The learned Counsel argued that the said draft industrial relation policy recommended that the negotiating status is to be given to any union/association having at least 25% membership of the employees in officers/workmen cadre. In case such a situation arises, negotiation at apex level on policy matters would be conducted in small committees of unions/associations having at least 25% membership. The said draft policy was prepared by two high officials of the Human Resources Management of the Bank. The said draft policy made a specific recommendation that at the apex level, there shall be negotiation on policy matters with the registered and recognized unions/associations. The negotiation status would be given at the apex level to any registered union/association having at least 25% membership in employees/officers/workmen cadre and in such an event, negotiation at the apex level would be conducted in a small committee of unions/associations having 25% membership. This clause, according to the learned Counsel, is following the guidelines laid down in the Sastry Award, more particularly in paragraphs 584 and 588 of the said Award. It was argued that the Sastry Award provides that on recognition, the union would acquire a right to negotiate with the employer in respect of matters forming an industrial dispute and the employer must receive and send replies to the executive of the union and grant interviews to that body regarding such matters. The Sastry Award suggested 25% of the workmen as a minimum percentage for a union to demand recognition. This 25%, according to Mr. Majumder, has been recognized in the draft policy. The learned Counsel referring to paragraph 588 of the award, submitted that notwithstanding the existence of other unions under the Shastri Award, the All India Bank Employees Association was given a recognition in view of the fact that majority of the Bank employees were represented by their associations before the committee and it was having a representative character. Mr. Majumder has made a special reference to that part of the paragraph 588 which records that all banks other than the Imperial Bank should recognize the All India Bank Employees Association and such recognition should carry with it the rights of negotiation, correspondence and interviews on the lines laid down in Section 28F(1)(2) and (4) of the Trade Unions Act. The constituent unions were also given similar rights, privileges and obligations. By referring to Paragraph 589 of the Sastry Award, it is submitted that the detailed draft industrial relation policy, prepared by responsible officers of the Bank was not considered at all by the Board and there is no rationale in adopting a policy by excluding the other recognized unions and only recognizing majority union to negotiate on policies relating to man power, planning, recruitment, transfer and deployment affecting its employees. It is submitted that the industrial peace and harmony depends on these policy matters and if the other recognized unions are excluded from negotiation, it would be counter productive. The exclusion of all other recognized unions excepting the majority union, is unreasonable and against the spirit of the Shastri Award. The Bank is required and obliged to give a hearing to the petitioners before finalizing the industrial policy. Since the petitioners were satisfied with the draft policy which gives adequate representation to all the recognized unions to negotiate even on policy matters, the petitioners had no reason to qualm. However, the respondents, without taking into consideration the draft policy and without any justifiable reason, excluded the other recognized unions from participating in negotiation at the apex level on policy matters. This conduct of the bank is in violation of the principles of natural justice.
It is argued that the recognition of a trade union without giving any right to negotiate is meaningless and against the basic object of industrial law jurisprudence and collective bargaining. Leaving out the other registered trade unions having substantial following amongst the members would mean that the cause of the substantial number of workmen would not be ventilated or considered while framing the policy matters and as such the relation between the management and the other recognized unions would not be conductive to industrial peace and harmony and produce desired result. The respondent No.1, as a model employer, is under an obligation to evolve a modality where the trade unions having minimum support would be invited to negotiate on policy matters as members of the joint bargaining council or body since absence of such union would make the entire process arbitrary and the participation of the workmen in such negotiation would be curtailed which is not conducive to industrial peace and harmony.
Participating in negotiation on policy matters is one of the major reasons for formation of a trade union and its very existence and if a trade union is unable to espouse the cause of its members, its existence is meaningless. The statutorily recognized right of a trade union has been taken away by introduction of the policy impugned in this proceeding.
The learned Counsel has relied upon the decisions reported in 1994 (2) LLJ 575 (Board of Trustees, Port of Calcutta Vs. Haldia- Calcutta Port & Dock Shramik Union & Ors.) and 1968 (1) LLJ 335 (Kesoram Rayon Workmen's Union Vs. Registrar of Trade Unions & Ors.) for the proposition that there cannot be a cut and dry rule regarding the minimum percentage of membership before a trade union can claim recognition from a Government or statutory authority and once a trade union is recognized, it carries with it the right to claim negotiation.
The law recognizes existence of more than one union and all the recognized unions should be allowed to have a negotiation on policy matters.
The petitioners, however, did not challenge the other provisions of the said policy.
Per contra, the learned Counsel representing the Bank, Mr. Sabyasachi Chowdhury, submitted that the said policy is a well-thought out policy inasmuch as the preface to the said policy would make it clear the purpose for which the workmen union having majority has been given the right to negotiate on policy matters. Mr. Chowdhury has referred to the said policy and submitted that from the policy it would appear that the respondent authorities upon due deliberation have adopted the said policy. Mr. Chowdhury has referred to Clause 1 of the Industrial Relation Policy which gives the reason for introduction of the said policy. It is submitted that the Bank in the backdrop of the volatility and the state of flux in the economy and fast changing technological scenario, thought that it would be prudent to have a well- defined Industrial Relation Policy to deal with issues relating to the workmen community of the Bank. Keeping in view the rapidly changing profile of human resource in the Bank arising out of large retirement on the one hand and regular recruitment on the other hand, the policies relating to manpower planning, recruitment, transfer and deployment affecting its employees, need to be attuned to the needs of the situation and it was, thus, imperative for the Bank to give due weightage to the opinion of the majority of the workforce as represented by the workmen union having majority membership in certain areas. The management has to have in place mechanism for taking timely decisions by representing the expectations of the majority of its workman. Keeping in mind the aforesaid factors, the Bank has promoted its Industrial Relation Policy for workmen staff. In order to attend the aforesaid objects, the bank felt that it is necessary that a structured Industrial Relation Policy is put in place to streamline various aspects of human relations. As it makes eminent sense to respect the majority sentiment of the workforce of workmen employees, the Bank is putting in place mechanism as a tool to promote self-reliance, mutual goodwill, trust, confidence and cooperation for achieving bank's mission.
Mr. Chowdhury has relied upon the decision of the Apex Court, namely, the Chairman, SBI & Anr. Vs. All Orissa State Bank Officers' Association and others reported in 2002 (5) SCC 669 at page 669 to argue that negotiation with the majority union has always been permissible. The learned Counsel has referred to Paragraph 15 of the said report and submitted that the Hon'ble Supreme Court has recognized that such a procedure to have negotiation with the majority union would be just and fair.
Mr. Chowdhury, however, in a fairness has placed the decision of the Hon'ble Supreme Court arising out of a review petition filed in connection with the aforesaid judgment, namely, Chairman, State Bank of India & Anr. Vs. All Orissa State Bank Officers Association & Anr., reported in AIR 2003 SC 4201: 2003 (II) SCC 607 and submitted that on a review petition filed by the State Bank of India the judgment passed on 6th May, 2002 was recalled. The review petition was filed on two issues, namely, (i) that even the majority union does not have the right of negotiation or representation with respect to individual grievances and denial of this right to a union, who was admittedly a minority union, could hardly be said to be discriminatory as the High Court seems to have assumed, (ii) under the Common Law there is no obligation on an employer to confer upon a union the right to represent individual employees and unless such a provision is expressly made by any statute or statutory rules, the employer is not obliged to grant any such right. The Hon'ble Supreme Court on examination of the affidavits filed, found that as a matter of fact and as a matter of long practice and usage, bipartite relations had been maintained only with the majority/recognized associations, but issues relating to individual grievances were processed through the grievance redressal procedure as they were not discussed with the majority/recognized associations. In all proceedings under the grievance procedure, the officer concerned would appear either in person or might be represented by a colleague. It is of significance that no union representative as such was allowed. It was held that there was no Common Law right of a trade union to represent its members whether for purposes of collective bargaining or individual grievances of members. This is an inroad made into the Common Law by special statutes. The Court accepted to review the decision and allowed the review petition, inter alia, on the ground that the attention of the Court was not adverted to elaborate grievance procedure machinery which was in existence and the details of which were placed on record.
Mr. Chowdhury has also relied upon the statements made in the interlocutory application field by the petitioners and submitted that it would appear from the averments of the said application that the petitioner, in fact, has accepted the said new policy and having accepted the said policy in such pleading, the petitioner cannot be allowed to take a contrary stand.
It is submitted that the petitioner cannot approbate and reprobate and in this regard he has relied upon the decision of the Hon'ble Supreme Court in AIR 1993 SC 352 (R.N. Gosain Vs. Yashpal Dhir) at Page 355, Paragraph 10 which is reproduced hereinbelow:-
"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". (See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 KB 608, at p.612, Scrutton, L.J.). According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set aside".
Mr. Chowdhury has relied upon Reserve Bank of India Vs. C.N. Sahasranaman & Ors. reported in AIR 1986 SC 1830, Paragraph 58 to argue that in service jurisprudence there cannot be any service rule which would satisfy each and every employee. A policy has to be examined to ascertain whether it is fair, reasonable and does justice to the majority to the employees and fortunes of some individuals is not the touchstone (emphasis supplied). According to the learned Counsel, the said policy has to be appreciated in the light of the aforesaid decisions.
It is further submitted that the Board of Directors had adopted this policy may be unknowingly in tune with the judgment of the Hon'ble Supreme Court reported in the Chairman, SBI (supra). The policy, if read as a whole, would show that the bank was trying to rationalize the process of negotiation and instead of having negotiation with multiple unions, a right has been conferred upon the majority unions to have negotiation in policy matters which cannot be said to be arbitrary or discriminatory, keeping in mind that the majority of the workmen are being represented through such majority union. It is only such policy matters that have been excluded at the apex level from negotiation with any other union excepting the majority union. In all other matters, the other unions have been given the right to participate subject to the percentage criteria mentioned in the said policy. The policy even has taken care of individual grievances.
Mr. Chowdhury has referred to Clauses 2.6.1 and 3.3 to show that a Circle level, Grievance Redressal Meeting is to be held with the majority organization at the all India level and with any other registered Unions of Workmen having 10% or more membership in the Circle. In such meetings, grievances of individual members relating to his/her service conditions and other local issues would only be discussed. If an employee feels aggrieved on any matter touching his/her working life, the employee may represent his/her case to the Branch Head/Head of Office/appropriate authority with all the relevant facts of such grievance through respective Branch Head/Head of Office. If the employee concerned is not satisfied with the decision of the Branch Head/Head of Office/appropriate authority, the employee may approach the next appropriate higher authority for redressal of his/her grievance through proper channel. Grievances touching the working life of the employee includes:-
1. Work allotment, rotation
2. Physical condition of work
3. Inter personal relationship (between the employee and his colleagues, his superior, sub-ordinates, customers etc.)
4. Unfair treatment by Superiors
5. Non-payment of any benefit due under award/settlement/rules regulations.
In the aforesaid perspective the said policy requires to be examined.
The main thrust of the argument of Mr. Majumdar seems to be that recognition of a trade union irrespective of its strength and majority character includes negotiation. The said submission is based on the paragraphs of Sastry Award as mentioned hereinabove. However, the learned Counsel has candidly admitted that there is no statutory right to a trade union to demand negotiation. Even without such admission on the part of Mr. Majumdar the law appears to be quite clear as would appear from the Chairman, S.B.I. (supra) in which the Hon'ble Supreme Court has in categorical terms stated that there is no Common Law right of a trade union to represent its members whether for the purposes of collective bargaining or individual grievances of members.
Similarly in Common Law, there is no obligation of an employer to confer upon a Union the right to represent individual employees and unless a provision is expressly made by a statute or statutory rules, the employer is not obliged to grant in such right. Similarly, in the case of a trade union which represents a body of workman unless the statute confers the right to the trade union to claim negotiation irrespective of its size or strength, no such trade union as a matter of right can claim that in all matters they should be invited for negotiation.
In the original judgment of the Hon'ble Supreme Court in Chairman, SBI (supra), the Hon'ble Supreme Court held that collective bargaining with a trade union having the support of majority of workmen will help in maintaining industrial peace and will help smooth functioning of the establishment. The said Industrial Relation Policy has carefully divided the matters relating to the grievances of the employees. The said policy has not deprived an employee to ventilate his/her grievances before the appropriate authority. It is only in respect of matters relating to manpower, planning, recruitment, transfer and deployment that a special right has been given to the recognized majority union to negotiate with the management at the apex level. In other matters, the policy clearly stated that Grievance Redressal Meeting would be held at apex level with registered workmen unions having 10% or more membership in the bank. The said policy has also addressed the issue with regard to grievances at the circle level and individual grievances of an employee. Mr. Majumdar has not challenged any other part of the said policy, save and except, Clause 2.4 which excludes all other unions from negotiation in policy matters except the majority union.
Mr. Majumdar assailed the said policy as arbitrary on the ground that while framing the policy, the respondent authorities have totally ignored the draft Industrial Relation Policy which recommends that negotiation status is to be given to any Union/Association having at least 25% membership of employees. It further suggested that in case such a situation arise negotiation at apex level on policy matters would be conducted in small committee of Union/Association having at least 25% membership. Industrial Relation Policy as adopted by the Bank seems to have not accepted this recommendation and participation of all other unions excepting the majority union has been excluded at the apex level during the negotiation in relation to policy matters. The exclusion of the other unions for negotiation at the apex level is not arbitrary or discriminatory. The petitioners do not have any legal, statutory or a fundamental right to demand negotiation. It is only an expectation. It has no legal foundation. Even if one extends the scope of judicial review to examine the said policy on the anvil of arbitrariness and fairness or illegality, it cannot be said that the said policy suffers from any of such vices. It has to be remembered that the policy makers are more conversant with the facts and such policy decisions were and are being reviewed periodically and suitably changed or modified to meet the growing demand and aspiration of the persons who would be affected by such policy. The banking sector, in fact, is one of the important pillars of our economy and smooth functioning of the banking sector is essential for proper growth and functioning of the economy as a whole. The banking sector has witnessed many bipartite and tripartite settlements. The policy makers for reasons stated in the first paragraph of the policy felt that it would be beneficial for the industry as a whole to recognize the majority union for the purpose of negotiation at the apex level of policy matters which on a wholesome reading of the policy does not appear to be arbitrary. The majority union by reason of their majority is expected to ventilate the grievances of the workforce as a whole and it cannot be said that the interest of other union would be affected if only the majority union is given any such preference. The object of collective bargaining is to harmonize labour relation and to promote industrial harmony and peace by creating equality of bargaining power between the labour and the capital. According to International Labour Organization (ILO) collective bargaining means "negotiations about working conditions and terms of employment between an employer, a group of employers, or one or more organizations of employers on the one hand and one or more representative organizations of workers on the other, with a view to conclude agreements." [ILO, Collective Bargain : A Workers Education Manual 3 (Geneva, 1960)]. The object of any labour movement at all times is to seek an ever rising standard of living. George Meany in his article "What American Labour Want" said that collective bargaining is not a means of seeking a voice in management, but a method adopted by the trade unions in championing the cause of their members. The method of negotiation between elected representatives of workers and management has received statutory recognition in India. A trade union can raise or sponsor a trade dispute and represent its members in legal proceedings in consequence of an industrial dispute. A union, irrespective of registration commanding allegiance of a majority of the workman has a better claim to negotiate with the employer on behalf of its workmen. (Workers of B and C Com. Vs. Labour Commissioner; AIR 1964 Mad 538). Although India has not Ratified ILO Convention No.98 on the Right to Organize and Collective Bargaining Convention No.98, the right is, however, granted by the Constitution of India [(Articles 19(1)(a)&(b)]. The said Convention stipulates that workers shall enjoy adequate protection against the act of anti-union discrimination in relation to their employment, that workers and employers' organization shall enjoy adequate protection against any act of interference by each other or each other's agents or members in their establishment, functioning or administration, and that appropriate machinery should be established to secure such protection. Both the judgments in Chairman, S.B.I. (supra) recognize that collective bargaining with the majority trade union would help maintaining industrial peace. In Chairman, S.B.I. (supra) reported in 2002(5) SCC 669, the Honb'le Supreme Court in paragraph 15, inter alia, states:-
"With growth of industrialization in the country and progress made in the field of trade union activities that necessary for having multiple unions in an industry has been felt very often. Taking note of this position power has been vested in the management to recognize one of the trade unions for the purpose of having discussions and negotiations in labour related matters. This arrangement is in recognition of the right of collective bargaining of workmen/employees in an industry. To avoid arbitrariness, bias and favouritism in the matter of recognition of a trade union, rules have been framed laying down the procedure for ascertaining which of the trade unions commands support of majority of workmen/employees. Such procedure is for the benefit of the workmen/employees as well as the management/employer since collective bargaining with a trade union having the support of majority of workmen will help in maintaining industrial peace and will help smooth functioning of the establishment." (emphasis supplied) The judgment on review held that there was no common law right of a trade union to represent its members whether for purposes of collective bargaining or individual grievances of its members. For redressal of grievances the bank was having a grievance procedure that had been functioning smoothly for the last several decades. The union recognized by the employer, which represented more than 90 per cent of officers employed in the concerned circle, had also not been given the privilege of representing its members in the grievance proceedings.
The respondent union in the aforesaid Chairman, S.B.I. (supra) was a non-recognized union.
In the instant case, the majority union is recognized on the basis of the check off system.
This system has not been objected to by the petitioners. The writ petition has not pleaded any mala fide against the policy makers. The majority view should be respected, is the rule and minority aspirations may be required to be taken into consideration, is a matter of prudence. Whether to negotiate with the majority union is a policy decision and unless it is vitiated with the vice of arbitrariness there is no scope for judicial review. The respondents in their wisdom has felt that for maintaining proper industrial relation, peace and harmony negotiation with the majority union in policy matters would produce desired result. This approach cannot be said to be arbitrary or irrational.
In an industry or an undertaking if there are more than one registered trade union questions often arise as to with whom the employer should negotiate or enter into bargaining assumes importance because if the trade union claiming this right is one which has its members who are minority workmen/employees, the settlements even if any arrived at between the employers and such union might not be acceptable to the majority and might not result in industrial peace. In such a situation with whom the employers should bargain or to put differently who represent the sole bargaining agent has been a matter of discussion and some dispute. The petitioners have accepted the check off system as the criteria for determining the majority status. In negotiation with the minority union resulting in a settlement would just produce the reverse result, namely, industrial unrest and disharmony. The majority union is supposed to act for the benefit of all the members of the workman irrespective of affiliation and it cannot be presumed that any negotiation at the instance of the majority union would prejudice the members of the other union. In any event, recourse to industrial adjudication in such an eventuality is always open.
The policy clearly enunciates the reason for adopting such course. The correctness of the reasons for framing the policy and/or justification of the said policy is not a matter of concern in a judicial review unless it is shown that there is an infringement of fundamental rights or legal rights or statutory violations. The Court would not and should not substitute its own judgment for the judgment of the authorities concern and more so when it is appeared to be just and fair. For the aforesaid reasons, in my opinion, the Industrial Relation Policy for the workmen staff as framed by the bank does not call for any interference.
The argument that the petitioner should not be allowed to challenge the said policy since they have accepted the said policy at the interlocutory stage appears to be misconceived. As it appears to me after going through the pleadings of the interlocutory proceedings arising out of the said writ petition, a dispute arose with regard to the majority status of the petitioner union. The bank had proceeded on an erroneous assumption that the petitioner shall not be allowed to participate in terms of the impugned policy in view of the fact that the petitioner is not the majority union. However, the bank thereafter discovered that the petitioner represents the majority union in terms of the said policy. The petitioner, thus, as the majority union is entitled to participate in the negotiation in terms of the said policy does not take away their right to challenge the said policy. There has been no acceptance of the said policy as such by the petitioners and, accordingly, the principle of approbate and reprobate would not apply.
The writ petition stands dismissed. However, under the facts and circumstances, there shall be no order as to costs.
The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)