Madras High Court
Tamil Nadu State Transport vs State Of Tamil Nadu on 19 April, 2005
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19/04/2005
C O R A M
The Hon'ble Mrs. Justice PRABHA SRIDEVAN
W.P. No.20038 of 2001
and W.P.Nos, 5929, 7383 and 40284 of 2002
Tamil Nadu State Transport
Corporation Employees' Federation
(AITUC), rep. by its General
Secretary J. Lakshmanan,
2, Pallavan Salai,
Kali Arangam Complex, .. Petitioner in
Chennai-2. W.P.20038 of 2001
Labour Progressive Federation,
rep. by its General Secretary
M. Shanmugam,
10, Thiagaraya Street, .. Petitioner in
T. Nagar, Chennai-17. W.P.5929 of 2002
Tamil Nadu Arasu Pokkuvarathu
Uzhiyar Sammelanam (CITU)
(Regd. No.2468/MDS),
rep. by its General Secretary, .. Petitioner in
52, Cooks Road, Chennai-12. W.P.7383 of 2002
T. Thirumalaisamy,
General Secretary,
Tamil Nadu Government Transport
Corporation Staff Federation
(601/MDU), TNSTC HQ Complex, .. Petitioner in
Bye Pass Road, Madurai-625 010. W.P.40284 of 2002
-Vs-
1. State of Tamil Nadu,
rep. by its Secretary,
Transport Department, .. 1st Respondent in
Fort St. George, W.Ps.20038 of 2001
Chennai-9. and 7383 of 2002
2. Government of Tamil Nadu, rep.
by its Commissioner & Secretary,
Transport Department,
Fort St. George, .. 1st Respondent in
Chennai-9. W.P.5929 of 2002
3. The Chairman,
State Transport Corporations,
(Secretary to Government,
Transport Department), .. 1st Respondent in
Fort St. George, Chennai-9. W.P.40284 of 2002
4. Commissioner and Secretary to
Government of Tamil Nadu,
Labour Department, .. 2nd Respondent in
Fort St. George, Chennai-9. W.P.5929 of 2002
5. The Commissioner of Labour, .. 3rd Respondent in
Labour Commissioner's Office, W.Ps.5929 of 2001
Tamil Nadu Labour Welfare Board and 2nd Respondent
Building, D.M.S. Complex, in W.Ps.7383 &
Teynampet, Chennai-6. 40284 of 2002
6. Tamil Nadu Road Transport Workers' }
HMS Federation 2/22, }
Trichy Road, Singanallur, }
Coimbatore. }
}
7. Tamil Nadu Government Transport }
Workers' Union (CITU), }
52, Cooks Road, }
Chennai-12. }
}
8. Tamil Nadu AITUC State Transport }
Workers' Sammelanam, }
Pallavan Salai, Chennai-2. }
}
9. Anna Thozir Sanga Peravai, }
Royapettah, Chennai-14. }
}
10.Tamil Manila Trade Union }
Congress (TMTUC) }
(Regd. No.2507/MDS), rep. by }
its President N. Nanjappan, }
Sathyamoorthy Bhavan, }
40, Thiru.Vi.Ka. Road, }
Chennai-2. }
}
11.Marumalarchi Thozhilalar Munnani, }
"Thayagam", 141, Rukmani }
Lakshmipathy Road, Egmore, }
Chennai-8, rep. by its }
General Secretary, Transport }.. R-4 to R-10 in
Wing Mr. P. Arunagiri. } W.P.5929 of 2002
(R-9 & R-10 in W.P.5929/2002 }
impleaded vide orders passed in }
WPMP.16870/2002 dt.17.4.2002 & }
WPMP.50036/2002 dt.9.2.2005) }
12.Metropolitan Transport Corporation }
(Chennai) Ltd., rep. by its }
Managing Director, Pallavan Salai, }
Chennai-2. }
}
13.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Villupuram Division, }
Villupuram-605 602. }
}
14.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Kanchipuram Division, }
1/2, Nadu Street, Shekpet, }
Kanchipuram-631 501. }
}
15.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Vellore Division, }
9, Rangarajapuram, }
Vellore-632 009. }
}
16.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Tiruchi Division, }
Periamilaguparai, }
Tiruchi-620 001. }
}
17.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Kumbakonam Division, }
Railway Station New Road, }
Kumbakonam-612 001. }
}
18.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Pudukottai Division, }
51/1, Pillai Thanneer Pandal, }
Thirumayam Road, }
Pudukottai-622 001. }
}
19.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Virudhunagar Division, }
Virudhunagar. }
}
20.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Dindigul Division, }
Bye-Pass Road, }
Dindigul-624 004. }
Pudukottai-622 001. }
}
21.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Karaikudi Division, }
Maruthupathi Mangiri Road, }
Karaikudi-630 307. }
}
22.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Madurai Division, }
Bye-Pass Road, }
Madurai-625 010. }
}
23.Tamil Nadu State
Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Tirunelveli Division, }
2, Thiruvananthapuram Road, }
Vannarapettai, }
Tirunelveli-627 003. }
}
24.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Nagercoil Division, }
Nesamoni Nagar, Rani Thottam, }
Nagercoil-629 001. }
}
25.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Coimbatore Division, }
37, Mettupalayam Road, }
Coimbatore-641 043. }
}
26.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Salem Division, }
12, Ramakrishna Salai, }
Salem-636 007. }
}
27.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Dharmapuri Division, }
Bharathipuram, Salem Road, }
Dharmapuri-636 705. }
}
28.Tamil Nadu State Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Erode Division, }
Chennimalai Road, }
Erode-638 001. }
}
29.State Express Transport }
Corporation Ltd. (TNSTC), rep. by }
its Managing Director, }
Pallavan Salai, Chennai-2. }
}
30.Anna Thozhir Sanga Peravai (ATP), }
rep. by its General Secretary, }
Royapettah, Chennai-14. }
}
31.Labour Progressive Federation, }
rep. by its General Secretary, }
North Usman Road, }
T. Nagar, Chennai-17. }
}
32.Tamil Nadu Govt. Transport }
Corporation Staff Federation, }
rep. by its Secretary, }
Plot No.288, Transport Nagar, }
Pappan Odai Postal Training }.. R-3 to R-23 in
Centre, Madurai-22. } W.P.7383 of 2002
PRAYER : Writ Petitions filed under Article 226 of the Constitution
of India praying for the reliefs as stated within.
!For Petitioner in }
W.P.20038 of 2001 } Mr. K. Vasudevan
For Petitioner in } Mr. R. Viduthalai
W.P.5929 of 2002 }
For Petitioner in } Mr. N.G.R. Prasad for
W.P.7383 of 2002 } M/s. Row & Reddy
For Petitioner in }
W.P.40284 of 2002 } Mr. M.M. Sundaresh
^For Respondents : Mr. N.R. Chandran,
Advocate General, assisted by
Mr. R. Chandrasekaran,
Government Advocate and
Mr. P.P. Shanmughasundaram,
Government Advocate
(Respondent in W.P.20038/2001;
RR-1 to 3 in W.P.5929/2002;
RR-1 to 4, 6, 10, 13, 14, 17
and 20 in W.P.7383/2002;
RR-1 & 2 in W.P.40284/2002)
Mr. C. Manohar (R-4)
- in W.P.5929/2002
Mr. V.R. Kamalanathan
(RR-5, 7, 9 & 18)
Mr. R. Parthiban (R-8);
Mr. Jayaraman (R-12);
Mr. L.G. Sahadevan (R-15);
Mr. G. Muniratnam (R-16);
Mr. V.V. Krishnan
Mr. C.P. Pattabiram (R-21)
- in W.P.7383/2002
:O R D E R
The above four writ petitions have been filed for the following reliefs :
W.P. No.20038 of 2001 - To issue a writ of mandamus directing the respondent to invite the petitioner Federation to participate in the Current Wage Settlement Negotiation and other negotiations and give sufficient opportunity to express their views.
W.P. No.5929 of 2002 - To issue a writ of mandamus directing respondents 1 to 3 to forbear from inviting any other trade unions excepting the recognised collective bargaining agents elected in accordance with the order passed by the Division Bench of the Madras High Court in Writ Appeal No.1205 of 1998 dated 10.11.1998 for all the collective bargaining negotiations relating to the employees of the Transport Undertakings employed under the control of the second respondent.
W.P. No.7383 of 2002 - To issue a writ of mandamus directing respondents 1 to 20 to conduct elections through secret ballot to recognise Trade Unions to represent the workers employed in State Transport Corporations in the State of Tamil Nadu and negotiate and effect settlements regarding their service conditions only with the recognised Trade Unions.
W.P. No.40284 of 2002 - To issue a writ of certiorarified mandamus calling for the records of the first respondent culminated in and by his Proceedings No.6309/C1/2002-6 dated 24.7.2002, quash the same and consequently directing the respondents to initiate talks on wage revisions and other issues with the elected four Unions insofar as the employees of the Tamil Nadu State Transport Corporations are concerned and to take all steps to reach an amicable settlement under Section 1 2(3) of the Industrial Disputes Act, 1947.
2. The learned counsel for the petitioners Mr. N.G.R. Prasad (W.P. No.7383 of 2002), Mr. R. Viduthalai (W.P. No.5929 of 2002) and Mr. M. M. Sundresh (W.P. No.40284 of 2002) submitted that the respondents cannot invite all the Federations/Unions for talks without holding a secret ballot as directed by the Supreme Court in Food Corporation of India Staff Union vs. Food Corporation of India [1995 (2) L.L.J. 272 = A.I.R. 1995 S.C. 1344], and by the Division Bench of our High Court in the judgment in Writ Appeal Nos.1205 of 1998 etc. reported in 1991 (1) L.L.N. 238 [The Managing Director, Tamil Nadu State Transport Corporation & Others vs. State of Tamil Nadu & Others]. According to them, the purpose of collective bargaining will be lost if the management does not talk with the representative Unions alone. According to them, if all the Unions are allowed to participate in the talks, it would dilute the spirit of collective bargaining. It is further submitted that earlier, in respect of the same Transport Corporation workers who are the petitioners in these cases, secret ballot was directed to be conducted in the writ appeal cited above. A settlement was arrived at which was in force till 31.8.2001. According to the learned counsel, though the period of settlement has come to an end, the settlement will be deemed to be in force until a fresh settlement is entered into. Therefore, the respondent Corporation is bound to invite only those Unions who are elected after a secret ballot is conducted; or, they should invite only those Unions who had been elected earlier and had participated in the ballot, which culminated in the 2 001 settlement. Reliance was placed on the following decisions :
1981 (1) L.L.J. 1 [L.I.C. VS. D.J. BAHADUR] 1970 (1) L.L.J. 83 [SOUTHERN RAILWAY MAZDOOR UNION VS. SOUTHERN RAILWAY] 2000 (1) S.C.C. 371 [NATIONAL ENGINEERING INDUSTRIES LTD. VS. STATE OF RAJASTHAN] W.P. NO.8721 OF 1998 DATED 4.2.1999 [CHENNAI BHARAT ELECTRONICS EMPLOYEES UNION VS.
THE DIRECTOR, BHARAT ELECTRONICS LTD.] W.P. NO.6415 OF 1991 DATED 2.7.1992 [D. VELLATHURAI VS. LABOUR COMMISSIONER & OTHERS] W.P. NOS.2551 OF 1999 ETC. DATED 12.2.2001 [N.L.C. MAZDOOR SANGH VS. NEYVELI LIGNITE CORPORATIONs LTD.]
3. Learned Advocate General appearing for the Transport Corporation submitted that the decision in both the Food Corporation of India case and the writ appeal referred to above did not lay down as a legal principle that the management is bound to invite only the representative Union for settlement talks; both of them were decisions born out of consensus. The learned Advocate General also pointed out that there is no State law similar to the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act. Therefore, when a trade union comes into existence as per the provisions of the Trade Union Act, 1926, the said Union cannot be prevented from representing its workers before the management and referred to Section 36 of the Industrial Disputes Act, 1947. Learned Advocate General also submitted that in the present case, the subsequent events must be taken note of. After the writ petitions were filed, strike notices under Section 22(1) of the Industrial Disputes Act were issued by the following Trade Unions on the following dates respectively :
16.3.2002 - Strike Notice by A.I.T.U.C. 18.3.2002 - Strike Notice by C.I.T.U. 18.3.2002 - Strike Notice by L.P.F. 20.3.2002 - Strike Notice by M.L.F. (M.D.M.K.) 3.4.2002 - Strike Notice by P.M.K. Therefore, as per Section 20, conciliation proceedings are deemed to have commenced. The Conciliation Officer invited the respective Unions for talks and they also participated. Learned Advocate General referred to the correspondence between by the trade unions and the Commissioner/Joint Commissioner (Conciliation). Having agreed to talks being conducted by the Joint Commissioner with all the Unions, it is now not open to the Unions to resile from that position and insist on relief being granted on the basis of the writ prayers. The learned Advocate General submitted that there is no inherent right in the petitioners to insist that they alone should be called for talks.
4. Mr. K. Vasudevan, learned counsel appearing for one of the smaller Unions submitted that the petitioner in W.P. No.20038 of 2001 had a right to be invited for talks.
5. The following paragraphs in the judgment of the Supreme Court in the Food Corporation of India case are relevant :
"But when in an establishment, be it an industry or an undertaking, there are more than one registered trade unions, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workmen/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employer should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discussion and some dispute. The 'check off system' which once prevailed in this domain has lost its appeals; and so, efforts are on to find out which other system can foot the bill. The method of secret ballot is being gradually accepted. All concerned would, however, like to see that this method is so adapted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking.
In the appeal at hand, the Food Corporation of India (FCI) and the unions representing the workmen have agreed to follow the "secret ballot system" for assessing the representative character of the trade unions. We have, however, been called upon to lay down as to how the method of secret ballot should be tailored to yield the correct result."
In the National Engineering Industries Ltd. case, the Supreme Court observed as follows :
"Where pursuant to identical charters of demands made by several unions, the management and a representative union reached a conciliation settlement to be operative immediately after the expiry of the previous settlement, held, the new settlement became binding on all workmen of the establishment including those belonging to a dissenting minority union - Principle of collective bargaining underlying the Act for resolving industrial disputes and maintaining peace, taken note of - Hence, during the existence of such a settlement, a dissenting minority union, which was not eligible for registration as a representative union, held, was not entitled to raise an industrial dispute in respect of the demands left out in the new settlement."
6. In Writ Petition No.6415 of 1991 decided on 2.7.1992, the question was with regard to the election of the Office Bearers and Executive Members of Binny Beach Engineering Workers' Union. In the circumstances of that case, this Court held that election being a democratic process for the functioning of the trade union, mandamus can be issued. That decision may not apply to this case.
7. In Writ Appeal No.1205 of 1999, by order dated 14.12.1998, a Division Bench of this Court ordered secret ballot to be conducted so as to decide who should represent the workers for arriving at a settlement and directed the respondent Corporation to issue a public notice upon whomsoever concerned and intends to participate in the proceedings since there were a large number of trade unions. The parties in this writ petition were the parties before the Division Bench, viz. the Management and the workers of the State Transport Corporation and on the next date of hearing, the Division Bench noted, "After considerable discussions, the counsel agreed for a separate ballot being held on the basis of the Federation to represent the workers in the wage settlement negotiations."
8. There is no doubt that a settlement does not suffer "death" merely because of the notice issued under Section 19(2), the award, even if it ceases to be operative qua award continues qua contract - vide 1 981 (I) L.L.J. 1 [LIFE INSURANCE CORPORATION OF INDIA VS. D.J. BAHADUR]. Therefore, even if the parties are at liberty to seek an alteration of the contract, until altered the contract continues to govern the relation between the parties in respect of the terms and conditions of service. But, merely because the terms of the settlement continue to operate until they are replaced, the Unions which were parties to the earlier settlement cannot insist that only they should be invited by the respondent for talks. Though the writ petitioners represented by learned counsel Mr. N.G.R. Prasad, Mr. R. Viduthalai and Mr. M.M. Sundaresh now contend that they alone should represent the workmen in the talks with the respondent Corporation, their stand after the filing of the writ petitions appears to have been different.
9. To the notice issued by the Commissioner of Labour for the conciliation proceedings after the strike notices were issued, a common reply statement was filed by the respondent Corporation. At that time, the following writ petitions were pending :
W.P. No.5929 of 2002 filed by L.P.F. W.P. No.7383 of 2002 filed by C.I.T.U. W.P. No.20473 of 2001 filed by T.M.T.U.C. W.P. No.20038 of 2001 filed by A.I.T.U.C. W.P. No.20693 of 2001 filed by I.N.T.U.C. W.P. No.31463 of 2002 in W.P. No.5929 of 2002 filed by M.L.F. W.P. No.20693 of 2001 filed by H.M.S. The petitioners sent letters to the Commissioner of Labour as detailed below :
Date Union Contents 14.6.2004 Marumalarchi Thozhilalar The General Secretary Munnani of this Union has stated that when there is no stay by the High
- Court ("cah;ePjpkd;wdk; jil cj;jput[ VJk; tH';fhj epiyapy;"), there is no prohibition restraining respondent from conducting talks with the workmen and that they would extend their full co-operation ("vkJ mikg;g[ KG xj;JiHg;g[ mspf;Fbkd bjhptpj;Jf;
bfhs;fpnwhk;").
14.6.2004 Thozhilalar Munnetra In this, it is stated Sanga Peravai that there is no question of withdrawing the writ petitions when
- no stay has been granted by this Court with the request to the Management to have direct talks with the Unions - ("vdnt Cjpa cah;t[ Fwpj;J eph;thfk;. bjhHpw;r';f';fSld; neuo ngr;R thh;j;ijapid bjhlh;e;jpl Mtd bra;jpLkhW nfl;Lf; bfhs;fpnwhk;").
14.6.2004 Tamil Nadu Government In this, it is stated Transport Corporations that no stay has been Staff Federation granted in any case with regard to the conciliation talks and
- that immediately steps should be taken to commence conciliation talks -
(Vernacular portion deleted) 16.4.2004 Tamil Nadu Road In this, it is stated Transport Workers that W.P. No.20693 of 2001 has been withdrawn under the belief that
- the respondent would invite all the Unions, including the HMS Federation, for talks -
(Vernacular portion deleted) 14.6.2004 Tamil Nadu Arasu In this, it is stated Pokkuvarathu Oozhiyar that no stay has been Sammelanam granted by any Court in any case and that if a date is fixed by the
- respondent for conciliation, immediately they would withdraw the writ petition pending before the High Court -
(Vernacular portion deleted) 18.6.2004 Indian National This Union has thanked Transport Workers the respondent for the Federation concrete steps and have assured the Government that no litigation would be pursued any longer - ("We request you to kindly inform the government, that regarding INTUC, it may remain assured that no litigation would be pursued any longer").
22.6.2004 Tamil Nadu Arasu In this, it is stated Pokkuvarathu that if a letter is Kazhagangalin given intimating the Thozhilalar Sammelanam initiation of talks and guaranteeing the participation of the
- AITUC Union, they would immediately withdraw the writ petition (Vernacular portion deleted) These letters were forwarded by the Commissioner of Labour to the respondent Management along with his letter dated 22.6.2004. It is seen from this letter that only three Unions had not replied, viz. Anna Thozhilalar Peravai, Ambedkar Arasu Pokkuvarathu Thozhir Sanga Peravai, Pattali Thozhir Sanga Maiyam. These three Unions have not filed the writ petitions. The petitioners also warned the respondents that that there would be an agitation if the Government does not invite the Unions for talks. This is dated 5.11.2004, and the crucial words, which are extracted hereunder, indicate that the Government should invite the labour unions for talks :
(Vernacular portion deleted) Therefore, at this stage, all that the petitioners were urging for is that the respondent Corporation should initiate talks with all the Workers' Unions. No demand was made by any of them that they alone should be called for the talks.
10. In 1984 (Supp.) S.C.C. 663 [BALMER LAWRIE WORKERS' UNION VS.
BALMER LAWRIE & CO. LTD.], the Supreme Court held :
"Multiplicity of political parties had its spill-over in multiplicity of trade unions seeking to represent workmen in an industrial undertaking or industry, as the case may be. The fallout of the multiplicity of such unions was inter-union and intra-union rivalry which threatened the peaceful working of the industrial undertaking or the industry. Each union, as the unfortunate experience shows, tried to overreach the rival by making occasionally exorbitant and untenable demands".
One of the strong objections raised to the Management's initiation of talks with all the Unions is that it would dilute the spirit of collective bargaining. In 1976 (2) S.C.C. 82 [ROHTAS INDUSTRIES LIMITED VS. ROHTAS INDUSTRIES STAFF UNION], the Supreme Court had an occasion to deal with an agreement between the management and labour, in which the workmen were represented by two registered unions and two unregistered unions which had a lesser following, so such agreements are possible and have been accepted. The interest of the workers should not be lost in the heat of inter-union rivalry. The Unions should not lose sight of the woods for the trees. In 1976 (4) S.C.C. 736 [ HERBERTSONS LIMITED VS. WORKMEN], the Supreme Court commented about the disquieting feature of union rivalry whereby the significance of collective bargaining, which is the forte of a union, is sought to be taken away.
11. In this case, the Management has invited all the Unions to take part in the conciliation talks. It is clear from the paragraphs extracted above that this is a decision which the Management is entitled to take. In these circumstances, the writ petitioner in W. P. No.7383 of 2002 cannot insist on the conduct of elections through secret ballot to decide as to which Union should negotiate and effect settlement, especially when it has, by its letter dated 14.6.2004, as extracted above, indicated that it would take part in the talks. Similarly, the writ petitioner in W.P. No.5929 of 2002 cannot insist on the respondent Corporation being restrained from inviting any other trade union expect the recognised collective bargaining agents elected in accordance with the order passed in the writ appeal referred to earlier. The order in the said writ appeal was one passed on the agreement of the counsel and the parties in that case for the purpose of entering into a settlement. That settlement has come to an end and the terms of that settlement will continue to be in force until there is a fresh settlement, but that cannot mean that the parties to the earlier settlement can alone be parties to the settlement that is to come and that the respondent Corporation cannot invite all the Unions to take part in the talks. As regards the writ petitioner in W.P. No.40 284 of 2002, this petitioner has also given a letter on 14.6.2004 agreeing to take part in the talks and also undertaking to withdraw the writ petition filed by them. Their prayer in the writ petition is for a direction to the respondents to initiate talks on wage revisions with the elected four unions. For the reasons applied in the case of the petitioner in W.P. No.5929 of 2002, the petitioner in this writ petition also cannot insist for an exclusive right. Insofar as the writ petitioner in W.P. No.20038 of 2001 is concerned, they have, by their letter dated 22.6.2004, agreed to withdraw the writ petition filed by them in the event of the Management guaranteeing the participation of the petitioner in the talks. It is doubtful if the petitioner in this writ petition can insist on being invited for taking part in the conciliation proceedings. By the letter dated 28.3.2002, the Secretary to the Government had requested the Commissioner of Labour to take immediate action to convene conciliation meetings. Paragraph 5 of the said letter shows that the demands raised by all the Unions are the same and common and therefore, a conciliation meeting may be convened, informing the Unions to be represented by one leader from each Federation. There is reference to the trade unions which were elected in the year 1998 to represent the workmen.
12. In the counter filed by the respondent Corporation (a common counter), it is seen that nine Unions, including the six representatives elected in the year 1998, have given a request for negotiation and this request is not confined to those six Unions alone, but other Unions who were elected in the year 1998 as well. It is also seen from the counter and it is reiterated by the learned Advocate General that the Government has taken a policy decision to invite all the registered Trade Unions and Federations to participate in the wage settlement talks. Even in the judgment of the Division Bench referred to earlier, by which the parties in these writ petitions agreed to have a secret ballot, the Division Bench merely said that the Transport Corporation will be at liberty to negotiate with the representatives so elected. There was no mandatory direction given to the respondent to conduct talks. The petitioners are unable to point out any legislative provision which declares that they alone should be invited to talk with the management. The two judgments referred to by the counsel for the petitioners are admittedly consensual judgments. On the other hand, the judgment in 2002 (5) S.C.C. 669, the Supreme Court has clearly declared that the management should act in a manner which helps in uniting the employees and not give an impression of divisive force out to create differences and distrust among workmen, and the question as to who should be called for the negotiation is something which is for the management to decide. In these circumstances, when this is the legal position, the mandamus sought for cannot be granted.
13. In 2003 (5) S.C.C. 437 [UNION OF INDIA VS. INTERNATIONAL TRADING CO.], the Supreme Court observed as follows :
"The courts as observed in G.B. Mahajan v. Jalgaon Municipal Council [1991 (3) S.C.C. 91] are kept out of the lush field of administrative policy except where a policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the court will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the courts have intervened on policy grounds the courts' view of the range of policies open under the statute or of what is unreasonably policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.
As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edn.), there is ample room within the legal boundaries for radical differences of opinion in which neither side in unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test court's own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the court thinks it to be unwise.
In Union of India v. Hindustan Development Corporation [1999 (4) S. C.C. 727], it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the courts cannot intervene with the decision. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact.
.....
If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed."
It was observed in the above case that it shows that a conscious policy decision has been taken. This decision has been followed in 2 005 (1) L.W. 519 [The Tamil Nadu Electricity Board vs. Tamil Nadu Electricity Board Engineers' Association (D.B.)], where the entire case law regarding the scope of interference by courts in matters of public policy has been dealt with and reference has been made to the decisions in A.I.R. 1980 S.C. 379 [Tamil Nadu Education Department Ministerial and General Subordinate Services Association vs. State of Tamil Nadu], A.I.R. 1984 S.C. 1543 [Maharashtra State Board of Secondary and High Secondary Education vs. Paritosh Bhupesh Kumar Seth], 2000 (8) S. C.C. 262 [Netai Bag vs. State of West Bengal], 2001 (3) S.C.C. 635 [ Ugar Sugar Works Limited vs. Delhi Administration] and 2002 (6) S.C. C. 252 [State of Rajasthan vs. Lata Arun]. When the Supreme Court, in 2 002 (5) S.C.C. 669, has held that it is for the management to decide who should be invited for taking part in the talks, there is no scope for any interference when the management has decided to invite all the Federations for deciding the issue of wage settlement.
14. The letter of the Secretary has already been referred to, which requests the Commissioner of Labour to invite all the Unions/ Federations and the letters of the Federations demanding that the management should invite the Unions for these talks have also been listed above. The view of the Government that considering the fact that the demands of all the Unions are alike and therefore the Unions must be invited is on the basis of the information in its possession, the advice it receives and according to its own perspective and calculation. There is no attack by any one of the petitioners that this decision is mala fide and therefore, even if it is wrong, it is not open to challenge. It has not been demonstrated that it is wrong. Only the petitioners appear to assert that it is their exclusive right to be invited for the talks and it has not been shown that there is such an inherent right. In 1997 (9) S.C.C. 495 [KRISHNAN KAKKANTH VS. GOVERNMENT OF KERALA], the Supreme Court observed that it is not necessary for the Court to find out if there is wisdom in the State's policy and that it does not matter whether a better or more comprehensive decision could have been taken and that a policy decision cannot be struck down unless it is apparently capricious or arbitrary or unreasonable or suffers from the vice of discrimination or infringes any statute or provisions of the Constitution. The policy decision in this case does not fall in any of these categories so as to warrant interference.
15. In 2003 (11) S.C.C. 607 [CHAIRMAN, STATE BANK OF INDIA VS. ALL ORISSA STATE BANK OFFICERS' ASSOCIATION], there were two associations, one registered unrecognised union having less than 9% membership and the other a union recognised for the purpose of collective bargaining. The complaint of the smaller union was that the management was adopting a policy of hostile discrimination and showing undue favour to the larger union. In that case, the High Court referred to Rule 2 4 of the Verification of Membership and Recognition of Trade Unions Rules, 1994, which confer some rights on unrecognised unions and directed the management to implement the principle. This direction was challenged by the management and the same was dismissed by the Supreme Court in 2002 (5) S.C.C. 669 [CHAIRMAN, STATE BANK OF INDIA VS. ALL ORISSA STATE BANK OFFICERS' ASSOCIATION]. The following paragraphs in 2 002 (5) S.C.C. 669 are important :
"With growth of industrialization in the country and progress made in the field of trade union activities the necessity 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."
.....
"Whether negotiation relating to a particular issue is necessary to be made with representatives of the recognized union alone or relating to certain matters concerning individual workmen it will be fruitful to have discussion/negotiations with a non-recognized union of which those individual workmen/employees are members is for the management or its representative at the spot to decide. At the cost of repetition we may state that it has to be kept in mind that the arrangement is intended to help in resolving the issue raised on behalf of the workmen and will assist the management in avoiding industrial unrest. The management should act in a manner which helps in uniting its workman/employees and not give an impression of a divisive force out to create differences and distrust amongst workmen and employees."
As against that, a review was filed. The judgment on review is 2003 (11) S.C.C. 607 cited supra. The case of the management is set out in the following paragraph :
"The review petitioner has urged two points in support. First, 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, which was admittedly a minority union, could hardly be said to be discriminatory as the High Court seems to have assumed. On the contrary, it is urged that conferring such a special right on the minority union would amount to reverse discrimination. Secondly, it is contended that in 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 High Court has found that the 1994 Verification Rules do not apply. In any event, State Bank as a public sector bank had created its own efficacious grievance-settlement machinery and there was no justification for the High Court to import the principle, if any, from Rule 24 of the inapplicable Rules to override the grievanceredressal machinery which was already in place. The petitioner contends that these submissions have been lost sight of in the judgment, which is sought to be reviewed. Hence, the review petition."
The review was ultimately allowed as follows :
"In our view, the contention urged by the counsel for the review petitioner has merit and needs acceptance. There is 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. Either the special statute operates proprio vigore, or it does not. In the situation before us, it is undisputed that Rule 24(a) on which the respondent Association and the High Court placed reliance, has no application. This is accepted even in the judgment under review. Nonetheless, on general principles of equity, justice and fair play the judgment under review holds that the minority trade union should also be afforded an opportunity of ventilating individual grievances of its members. It appears to us that, in doing so, the attention of this Court was not adverted to the elaborate grievance-procedure machinery which is in existence and the details of which are placed on record.
Having considered the matter in its entire perspective, we are inclined to agree with the submissions of the review petitioner. We do not think that denying such a right of representation to the minority union, when such a right is not conceded even to the majority union, amounts to discrimination requiring redressal at the hands of the High Court. It is also not possible for the High Court to exercise its powers under Article 226 to direct an employer to bring into existence such a system of representation in grievance procedure. In the absence of arbitrariness or discrimination. In our judgment, there was no scope at all for interference in exercise of writ jurisdiction. It is urged by Shri. Salve for the review petitioner that the application of such a principle in one zone might create serious repercussions all over, since the Bank has branches throughout the country. We also noticed that the appropriate Government in respect of State Bank of India is the Central Government and the rules made by the State Government cannot be enforced against it. Considering all aspects of the matter, it appears to us that the review petition must be allowed, as these crucial issues were not considered in the judgment under review."
16. This is the law. The petitioners, however, assert that they have the exclusive right to be called for the talks unless and until a secret ballot is held. The source to which they trace their so called right is not to any statute nor a law laid down by the Supreme Court, but only to the judgment of the Supreme Court in the Food Corporation of India case which, as stated earlier, are consensual judgments.
17. It is also seen from 2000 (5) S.C.C. 669 cited supra that the management is the best person to decide on the spot who should be called for the talks. The management decided to adopt a policy whereby nobody will be discriminated against. There can be no objection to such a policy. The petitioners knew that all the Unions would be invited and had either not objected or had in fact agreed to that. The mere fact that all the Unions were invited would not by itself dilute the spirit of collective bargaining. But above all, one is saddened by the internecine rivalry between Unions.
18. For all these reasons, all the writ petitions are dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
ab Index : Yes Website : Yes To
1. The Secretary, Transport Department, State of Tamil Nadu, Fort St. George, Chennai-9.
2. The Commissioner & Secretary, Transport Department, Government of Tamil Nadu, Fort St. George, Chennai-9.
3. The Chairman, State Transport Corporations, (Secretary to Government, Transport Department), Fort St. George, Chennai-9.
4. Commissioner and Secretary to Government of Tamil Nadu, Labour Department, Fort St. George, Chennai-9.
5. The Commissioner of Labour, Labour Commissioner's Office, Tamil Nadu Labour Welfare Board Building, D.M.S. Complex, Teynampet, Chennai-6.
6. The Managing Director, Metropolitan Transport Corporation (Chennai) Ltd., Pallavan Salai, Chennai-2.
7. The Managing Director, Tamil Nadu State Transport Corporation Ltd. (TNSTC), Villupuram Division, Villupuram-605 602.
8. Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Kanchipuram Division, 1/2, Nadu Street, Shekpet, Kanchipuram-631 501.
9. Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Vellore Division, 9, Rangarajapuram, Vellore-632 009.
10.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Tiruchi Division, Periamilaguparai, Tiruchi-620 001.
11.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Kumbakonam Division, Railway Station New Road, Kumbakonam-612 001.
12.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Pudukottai Division, 51/1, Pillai Thanneer Pandal, Thirumayam Road, Pudukottai-622 001.
13.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Virudhunagar Division, Virudhunagar.
14.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Dindigul Division, Bye-Pass Road, Dindigul-624 004.
Pudukottai-622 001.
15.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Karaikudi Division, Maruthupathi Mangiri Road, Karaikudi-630 307.
16.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Madurai Division, Bye-Pass Road, Madurai-625 010.
17.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Tirunelveli Division, 2, Thiruvananthapuram Road, Vannarapettai, Tirunelveli-627 003.
18.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Nagercoil Division, Nesamoni Nagar, Rani Thottam, Nagercoil-629 001.
19.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Coimbatore Division, 37, Mettupalayam Road, Coimbatore-641 043.
20.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Salem Division, 12, Ramakrishna Salai, Salem-636 007.
21.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Dharmapuri Division, Bharathipuram, Salem Road, Dharmapuri-636 705.
22.Tamil Nadu State Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Erode Division, Chennimalai Road, Erode-638 001.
23.State Express Transport Corporation Ltd. (TNSTC), rep. by its Managing Director, Pallavan Salai, Chennai-2.