Delhi High Court
Airport Authority Karamchari Union vs Union Of India And Ors on 17 March, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th March, 2016.
+ W.P.(C)No.283/2013
AIRPORT AUTHORITY KARAMCHARI UNION .... Petitioner
Through: Mr. Sujeet K. Mishra, Adv.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Ms. Anjana Gosain with Mr. Vishu
Agrawal, Advs. for UOI.
Mr. K.K. Rai, Sr. Adv. with Mr.
Digvijay Rai, Mr. Syed Hassan Bin
Taher and Mr. Anshul Rai, Advs. for
R-3/AAI.
AND
+ W.P.(C) No.754/2013
INDIAN AIRPORTS KAMGHAR UNION ..... Petitioner
Through: Mr. Colin Gonsalves, Sr. Adv. with
Mr. Divya Jyoti Jaipuriar and Ms.
Vinika Kino, Advs.
Versus
AIRPORT AUTHORITY OF INDIA AND ORS ..... Respondents
Through: Mr. K.K. Rai, Sr. Adv. with Mr.
Digvijay Rai, Mr. Syed Hassan Bin
Taher and Mr. Anshul Rai, Advs. for
AAI.
Ms. Anjana Gosain with Mr. Vishu
Agrawal, Advs. for UOI.
Mr. Dinesh Agnani, Sr. Adv. with Mr.
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 1 of 24
Inderjit Singh, Adv. for R-2.
AND
+ W.P.(C) No. 6446/2013 & CM No.14039/2013 (for stay)
INDIAN AIRPORTS KAMGHAR UNION ..... Petitioner
Through: Mr. Colin Gonsalves, Sr. Adv. with
Mr. Divya Jyoti Jaipuriar and Ms.
Vinika Kino, Advs.
Versus
AIRPORTS AUTHORITY OF INDIA & ORS ..... Respondents
Through: Mr. K.K. Rai, Sr. Adv. with Mr.
Digvijay Rai, Mr. Syed Hassan Bin
Taher and Mr. Anshul Rai, Advs. for
AAI.
Ms. Anjana Gosain with Mr. Vishu
Agrawal, Advs. for UOI.
Mr. Dinesh Agnani, Sr. Adv. with Mr.
Inderjit Singh, Adv. for R-3.
AND
+ W.P.(C) No.5357/2015 & CM No.9671/2015 (for direction)
AIRPORTS AUTHORITY OF INDIA
WORKERS UNION ..... Petitioner
Through: Mr. Tarun Rana, Adv.
Versus
THE AIRPORT AUTHORITY OF INDIA & ORS ....Respondents
Through: Mr. K.K. Rai, Sr. Adv. with Mr.
Digvijay Rai, Mr. Syed Hassan Bin
Taher and Mr. Anshul Rai, Advs. for
AAI.
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 2 of 24
Mr. Dev P. Bhardwaj, Adv. for UOI.
Mr. Inderjit Singh, Adv. for R-4.
Mr. Sujeet K. Mishra, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. All the four petitions concern the election of the recognised Trade
Union of the respondent Airports Authority of India (AAI).
2. The petitions were entertained and pleadings have been completed.
The counsels have been heard yesterday i.e. 16th March, 2016 and today.
3. The senior counsel for Indian Airports Kamghar Union (IAKU) has
argued:
(i) that such election for recognising/electing the recognised Trade
Union of AAI were held on 29th January, 2013;
(ii) that elections are to be held five yearly and the next election
would be due in the year 2018;
(iii) that in the last election held on 29th January, 2013, the Airports
Authority Employees Union (AAEU) was declared elected as the
recognised (majority) union of the AAI;
(iv) that the victory of the AAEU was a marginal one; of all the
10,800 votes cast (out of the list of 11,621 voters), AAEU was found
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to have polled 5376 votes and the IAKU was found to have polled
5210 votes;
(v) that the procedure followed for the election was flawed and did
not maintain the secrecy of the ballot as was / is required to be
maintained;
(vi) that though in accordance with the Memorandum dated 18 th
December, 1980 of the Office of the Chief Labour Commissioner
(CLC), Govt. of India, the Returning Officer (RO) under whose
supervision the election through secret ballot is to be conducted with
the assistance of the management concerned, is required to be notified
by the CLC (Central) but the same was not done;
(vii) that the ballot papers were also bearing the serial number as was
provided on the counterfoil of the ballot papers and on which
counterfoil the signatures of the voters were obtained;
(viii) that the voters were also asked to sign on a register and on
which also the serial number of the ballot paper issued to each of the
voters was entered;
(ix) that thus, on comparing the signatures of the voter on the
counterfoil of the ballot paper or on the register with the identity of the
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voter could be connected with the vote exercised by him / her;
(x) that W.P.(C) No.283/2013 was filed prior to the election,
pointing out inter alia the aforesaid flaws in the election but the
interim relief of stay of elections scheduled on 29 th January, 2013 was
denied vide order dated 24th January, 2013 therein but the outcome of
the election was made subject to the final adjudication of the writ
petition;
(xi) that W.P.(C) No.754/2013 has been filed seeking the relief of
setting aside of the election held on 29th January, 2013;
(xii) that W.P.(C) Nos.283/2013 & 754/2013 also seek the relief of
holding of a fresh election before the next election due on 29th
January, 2018;
4. The counsel for the petitioner in W.P.(C) No.283/2013 concurred with
the aforesaid arguments of the senior counsel for the petitioner IAKU.
5. Finding, that of the term of five years for which AAEU has been
elected, more than three years are already over and the next election is due in
January, 2018 and being of the view that even if the petitions were to
succeed and fresh election were to be ordered, the said process may also take
about six months time, I at the outset suggested that the petitions be disposed
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of, subject to the arguments of the counsel for the respondents, by directing
redressing the grievances urged for the next election due in January, 2018
and by ensuring that the said election is held immediately when it falls due
and by issuing directions therefor.
6. The senior counsel for the AAI, the senior counsel for AAEU and the
other appearing counsels were agreeable thereto, subject to their contentions
with respect to appointment of the RO.
7. However, the senior counsel for IAKU was not agreeable thereto.
8. I further enquired from the senior counsel for IAKU, what is the basis
for the apprehension that anyone would undertake the exercise of comparing
the signatures on the counterfoil of the ballot papers or on the register with
that of a particular workman / employee of AAI and thereafter be interested
in finding out for which Trade Union that particular workman/employee
exercised franchise/voted by connecting to the ballot polled. I further
observed that ordinarily the signatures made by the voter on the counterfoil
of the ballot paper and on the register, even if any maintained (which was
denied by the counsels for AAI and AAEU), are not his / her exact signatures
in the records of the respondent AAI and whether not there is a tendency to
just put initials, inasmuch as it is not the case that the identity of the voter at
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 6 of 24
the time of casting of the vote was determined on the basis of his / her
signatures. I further enquired whether not the said records i.e. the register, if
any and the counterfoils of the ballot papers and the ballot papers are
retained by the AAI and what would be the interest of the AAI in
undertaking the said exercise. It was further enquired, whether not all the
said records are destroyed after the election.
9. The senior counsel for IAKU only vaguely suggested that the AAEU,
which has been elected, is in collusion with the AAI and is the favourite
Trade Union of AAI and AAI is likely to give access to the AAEU of the
said records and AAEU would be interested in finding out which workman /
employee had voted for it and which had voted for its rival unions.
10. I am not satisfied on the aforesaid aspect. No pleadings have been
shown to the said effect and there can be no presumptions to the effect
aforesaid. Rather, I am informed that in the past, since 1992 when such
elections were first held, IAKU has also been elected as the recognised
(majority) union.
11. The senior counsel for AAI has referred to my order dated 15 th
January, 2016 in W.P.(C) No.198/2016 titled Sunita Arora Vs. Delhi
University, relying on the judgment of the Division Bench of this Court in
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 7 of 24
S.D. Siddiqui Vs. University of Delhi 2006 (88) DRJ 504, laying down that
if one wishes to challenge an election, he has to file an election petition if
that is provided under the relevant statute or Rules, and if there is no such
provision in any statute or Rule for challenge by an election petition, then
one has to file a civil suit for this purpose and not a writ petition. It was
contended that the petition is liable to be dismissed on this ground alone,
relegating the petitioners to suit remedy.
12. It was also contended that the records aforesaid are destroyed. It was
yet further argued that in holding the election on 29 th January, 2013, the
same procedure, as has been in vogue since 1992, was followed; that the
Code of Conduct for holding the election was developed by consensus and
the form of the ballot paper was vetted by all concerned including IAKU and
IAKU cannot now seek setting aside of election on that ground and is
estopped from claiming so. It was however stated that AAI has no objection
to this Court issuing any direction for future elections to the extent of
maintaining the secrecy of the ballot papers.
13. With respect to the claim for appointment of RO by the CLC
(Central), it was contended that the CLC (Central) is to notify the RO only if
jointly requested by all the parties concerned and since in the present case no
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such joint request was made by the parties, IAKU cannot now raise an
objection in this regard.
14. The other counsels appearing for the respondents including for the
CLC, Government of India supported the aforesaid contentions.
15. I have in this regard perused the Memorandum dated 18 th December,
1980 supra filed as Annexure P-8 to W.P.(C) No.283/2013; the same is as
under:
"MEMORANDUM
Sub:- Determination of relative strength of unions operating in
an establishment /industry in a local area, under the
Central Sphere by Secret ballot.
1. As you are aware certain trade union Organizations have
been representing to the Govt. for determination of relative
strength of unions operating in an establishment by Secret
Ballot System. A copy of the procedure, as evolved by this
office and approved by the Ministry of Labour, is enclosed for
information.
2. In order to conduct elections through secret ballot by the
CIRM for establishments falling in the Central Sphere, the
following instructions are issued to all field officers for their
information and guidance.
3. On receipt of a request either from the management or
from a union for the purpose of recognition of a union in an
establishment, or in any industry in a local area, through Secret
Ballot, the Ministry of Labour have to examine particulars of
union (s) to consider their eligibility for recognition. For this
purpose, the field officers of the CIRM are required to collect
preliminary data, including:-
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 9 of 24
i) Consent of the management and of all the union (s)
functioning in the establishment for holding secret
ballot for the purpose;
ii) Consent of both the management and of the union
(s) for secret ballot to be conducted by the CIRM;
iii) Undertaking from the management and also from
the unions that they will accept the result of such
secret ballot as binding for the purpose, and
iv) Undertaking from the management that they will
accord recognition on the basis of such verdict in
secret ballot.
4. After examination of the preliminary data, the Ministry of
Labour will advise the Chief Labour Commissioner (Central) to
undertake necessary steps to determine the relative strengths of
all the eligible unions. Thereafter, the CLC(C) will notify the
Returning Officer under whose supervision the election through
secret ballot will be conducted with the assistance of the
management concerned. The CLC will fix the month of election
while the actual date of election will be fixed by the Returning
Officer.
......"
16. I may notice that the applicability of the aforesaid Memorandum to
respondent AAI is also in dispute.
17. It was also the contention of the senior counsel for AAI that the
dispute aforesaid is also an industrial dispute and the remedy of an industrial
dispute before the Labour Court / Industrial Tribunal is available and the writ
petition is not maintainable. Reliance in this regard was placed on Sir
Edward Betham Beetham Vs. Trinidad Cement Ltd. (1960) 2 W.L.R. 77
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 10 of 24
(Privy Council) and which was relied upon by the High Court of Kerala in
T.C.C. Thozhilali Union Vs. T.C.C. Ltd. (1982) I LLJ 425.
18. The senior counsel for AAI also referred to:
(I) Food Corporation of India Staff Union Vs. Food Corporation
of India 1995 Supp. (1) SCC 678 where the Supreme Court laid down
the norms and procedure to be followed for assessing the
representative character of the trade unions by „secret ballot system‟
and in Clause (xi) whereof it was prescribed that at the time of polling,
the polling assistant will first score out the name of the employee /
workman who comes for voting, from the master copy of the voters
list and advise him thereafter to procure the secret ballot paper from
the Presiding Officer and in Clause (xii) whereof it was prescribed that
the Presiding Officer will hand over the ballot paper to the workman /
employee concerned after affixing his signatures thereon and that the
signatures of the workman / employee casting the vote shall also be
obtained on the counterfoil of the ballot paper. It was thus contended
that the procedure followed by the respondent AAI was inconsonance
therewith;
(II) Workmen of Kampli Co-operative Sugar Factory Ltd. Vs.
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 11 of 24
Management of Kampli Co-operative Sugar Factory Ltd. (1994) I
LLJ 994 where the High Court of Karnataka held that the recognition
of the union is not regulated by any statutory provision and that a
union cannot enforce its so-called right of recognition against the
management by a writ (the senior counsel for IAKU pointed out that
the said case was in respect of a private company and thus has no
applicability).
19. The senior counsel for IAKU in rejoinder contended that the
availability of the alternative remedy, even if any of going to the Labour
Court / Industrial Tribunal and / or of suit, is not a bar to the maintainability
of a writ remedy. Reliance in this regard was placed on para 16 of ABL
International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd.
(2004) 3 SCC 553 and on para 18 of Real Estate Agencies Vs. State of Goa
(2012) 12 SCC 170. It was further contended that the ratio of S.D. Siddiqui
supra followed in Sunita Arora supra is in relation to Delhi University
Teachers‟ Association (DUTA) and would not be applicable to a body such
as the AAI.
20. I remain of the opinion that the disputes as raised in W.P.(C)
No.754/2013 and in W.P.(C) No.283/2013 entail several disputed questions
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of facts which cannot be decided in writ jurisdiction. Though none has
disputed that secrecy of ballot has to be maintained but whether the secrecy
of the ballot has been compromised in the election held on 29 th January,
2013 and for the reason whereof the said election needs to be set aside, is
certainly a question of fact and without the said fact being unambiguously
established, in writ jurisdiction, no direction for setting aside of the election
can be issued. Nothing has been brought before me from which I can hold
that it stands established that the secrecy of the ballot in the election held on
29th January, 2013 so stood compromised. The arguments of IAKU assume
collusion between AAI and AAEU which was declared elected in the said
election; it further assumes that AAI will give access to AAEU of all the
records of the elections; it yet further assumes that on sifting of the said
records and from the signatures on the register, if any and on the
counterfoils, AAEU would be able to connect the vote polled to the voter
and all of which is without any basis. It yet further assumes the effect of the
secrecy of the ballot being compromised, when none who may have been
effected thereby, is cited.
21. The relief thus of setting aside of the election held on 29th January,
2013 and of directing a fresh election to be held cannot be granted. Once it is
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 13 of 24
held that it cannot be granted, it would matter not that vide order on an
application for interim relief the outcome of the election was made subject to
the outcome of the writ petition. A writ petition which is found to be not
maintainable in law would not become maintainable for the reason of such
interim order.
22. I am however of the opinion that directions for maintaining the
secrecy of the ballot and for meeting the grievance as urged in these
petitions, for future elections, needs to be issued.
23. The counsel for CLC (Central), Government of India having admitted
that an RO for holding the election for recognition of the majority Trade
Union of the respondent AAI can be notified, if requested for by the
respondent AAI and all the concerned unions, I am also of the opinion that
for all future elections, an endeavour should be made to have the RO so
notified from the CLC (Central). I can safely assume that all the concerned
unions are present before this Court; since none has objected thereto, their
consent can also be presumed.
24. I accordingly dispose of W.P.(C) Nos.283/2013 & 754/2013 by
issuing the following directions for future elections for recognising the
majority / recognised Trade Union of the respondent AAI:
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(I) That all the requisite steps for maintaining the secrecy of the
ballot be taken including by considering grievances as urged with
respect to election held on 29th January, 2013 and by taking steps for
securing the records of the election held and destruction thereof
immediately after the minimum period, if any prescribed or requisite
period for maintenance thereof for use / reference in dispute, if any
with respect to the election;
(II) that the CLC (Central), Govt. of India be approached before the
election for notifying the RO for conducting the election.
25. The senior counsel for IAKU with respect to W.P.(C) No.6446/2013
argued that IAKU therein is seeking a direction to the AAI for inviting
IAKU also for consultations held with AAEU. It is contended that the
IAKU, even if not recognised, has a right to be invited for and of
participation in the said consultations.
26. The counsel for the petitioner in W.P.(C) No.5357/2015 states that the
claim in his petition is also to the same effect.
27. I have immediately enquired that if Trade Unions which have not been
elected / recognised as the majority Trade Union are also to be notified of the
meetings to be held by AAI with the recognised / majority Trade Union and /
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or if the respondent AAI, notwithstanding the said election and recognition,
is obliged to deal with all the Trade Unions, what is the purpose of holding
the election and of recognition.
28. The senior counsel for IAKU instead of answering the query raised
states that it is so provided by AAI itself. He, in this regard, invites attention
to:
(A) letter dated 30th November, 2011 of AAI to the Assistance
Labour Commissioner (C) on the subject of request of IAKU for
recognition of protected workmen, referring to the "code of
discipline";
(B) letter dated 8th February, 2013 of AAI to the General Secretary,
AAEU also referring to the "code of discipline";
(C) counter affidavit filed on 17th April, 2013 by AAI before the
Central Government Industrial Tribunal / Labour Court at Hyderabad
in I.O. No.40/2007 titled Indian Airports Kamgar Union Vs. Airport
Authority of India also referring to the "code of discipline";
(D) document filed as Annexure P-4 to W.P.(C) No.6446/2013
which is Annexure-II to some other document and is titled "Code of
Discipline in Industry" and Clause 6 under the head "Criteria for
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Recognition of Unions" whereof is as under:
"6) A representative union for an industry in an area should
have the right to represent the workers in all the establishments
in the industry, but if a union of workers in a particular
establishment has a membership of 50% or more of the workers
of that establishment, it should have the right to deal with
matters of purely local interest such as, for instance, the
handling of grievances pertaining to its own members. All
workers who are not members of that union might either
operate through representative union for the industry or seek
redress directly."
29. Attention is then again drawn to the result of the election held on 29th
January, 2013 and it is shown that IAKU got more than 50% of the votes in
Eastern, Western and Northern regions and in CATC, Allahabad, U.P. It is
argued that though IAKU has been calling upon AAI to invite it for
discussions but is not being so invited and a direction is required to be issued
by this Court in this respect.
30. I have enquired from the senior counsel for IAKU as to what are the
matters of purely local interest and the decision with respect whereto is taken
at the local level and not at the central level.
31. It is replied that on a day-to-day basis, various issues keep on arising
and the decision with respect whereto has to be taken in consultation with the
union, even if not recognised as a majority union but which represents more
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than 50% of the workmen in that area as otherwise it would prejudice the
interest of the workers at a particular location. The example, only of fixation
of duty roster is given (the counsel for AAI states that guidelines for
preparation of duty roster are also prescribed at the central level and the local
stations are bound to fix the duty roster as per the said guidelines. It is also
stated that each region has around 25 airports and if it were to be held that
local issues are to be sorted out at the local level, it cannot be region-wise
but will have to be airport-wise, after finding out which union had majority
at that particular airport). The senior counsel for IAKU has also refered to
Chairman, State Bank of India Vs. All Orissa State Bank Officers'
Association (2002) 5 SCC 669 where in the context of the State Bank of
India (SBI) it was held that taking note of the possibility of multiple trade
unions coming into existence in the industry, provisions have been made in
the Rules conceding certain rights to non-recognised unions and that though
such non-recognised unions may not have the right to participate in the
process of collective bargaining with the management / employer over issues
concerning the workmen/employees in general, do have the right to meet and
discuss with the employer on issues relating to grievances of any individual
member regarding his service conditions.
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32. I am afraid, the aforesaid observations do not support what is being
argued. The counsels for the respondents also concede that non-recognised
unions can represent grievances of individual member. However, what the
senior counsel for IAKU has argued is the right of non-recognised unions to
participate in the discussions of the recognised trade union with the
management of AAI and which does not find support from the said
judgment. It also appears to have escaped the attention of the senior counsel
that the judgment supra in Chairman, State Bank of India Vs. All Orissa
State Bank Officers' Association was recalled in review, reported as
Chairman, State Bank of India Vs. All Orissa State Bank Officers'
Association (2003) 11 SCC 607. I am of the view that once the trade union
is declared as a majority / recognised union, it represents all the workmen
including those who made not have voted for it and cannot be representative
of only those workmen who have supported it in such election. In fact, the
said trade union is not even to know which workers supported it and which
supported some other trade union. That is the very genesis of the secret
ballot. Rather, I have pointed out to the senior counsel for IAKU that if it be
the case of IAKU that a large number of the issues of the workmen require
consideration and are to be resolved at a local level and only some at the
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central level, IAKU should boot for a system in AAI of affording recognition
at two levels, one at the local level and the other at the central level, with the
trade unions being separately recognised for each location / area / region and
a federation of recognised trade unions to represent the workmen centrally
and which system appears to be in vogue in the Indian Railways Manual.
33. Though the senior counsel for IAKU during the hearing has also
handed over copy of the judgment dated 11th December, 2007 of the Division
Bench of the High Court of Madras in W.As. No.502-503/2005 titled The
General Secretary, N.L.C. Labour and Staff Union Vs. N.L.C. United
Workers Union but I am unable to decipher therefrom also any support for
the contention raised by IAKU in this respect. The same is the position with
respect to the judgment dated 12th June, 1996 of the Division Bench of the
High Court of Andhra Pradesh in W.A. No.848/1994 titled Indian Airlines
Ltd., New Delhi Vs. Indian Airlines Technical Assistants Union.
34. The senior counsel for AAI has contended that (i) the document relied
upon as „code of discipline‟ which purports to be Annexure-II of some other
document is not a complete document; and, (ii) the said „code of discipline‟
has never been followed by AAI and dates back to the times before AAI
started holding elections for recognising a trade union. Reliance was placed
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on Balmer Lawrie Workers' Union, Bombay Vs. Balmer Lawrie & Co. Ltd.
1984 (Supp) SCC 663 observing that the recognised trade union is the sole
bargaining agent for the workmen and recognising a trade union is in the
larger interest of industrial peace and harmony and that the recognised trade
union represents all the workmen. It was further argued that the relief which
has been pressed is not the relief as has been claimed in these petitions. The
reliefs which have been claimed in the petitions are of advancing all the
same facilities, including of infrastructure, to non-recognised unions which
AAI gives to the recognised trade union.
35. The senior counsel for AAEU also contends that even the election was
not conducted on the basis of the „code of discipline‟. He also draws
attention to para 15 of W.P.(C) No.6446/2013 and contended that on the
filing of W.P.(C) No.6446/2013, W.P.(C) No.754/2013 had become
infructuous. It is further argued that whenever IAKU was elected as the
majority trade union, AAEU had made the same claim as IAKU is today
making but the same was rejected.
36. I have enquired from the counsels for the petitioner in W.P.(C)
Nos.6446/2013 & 5357/2015, whether at any time when they were elected as
the majority trade union, any other trade union was afforded such
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 21 of 24
participation in discussions as is being sought herein. Both stated that they
have no instructions in this regard. The counsels for the respondents
categorically state that it has never been so.
37. The counsel for AAI unequivocally states that AAI has only one
establishment and what IAKU is seeking has never been practised in the
past.
38. The senior counsel for IAKU in rejoinder argued that AAI in the
letters / counter affidavit earlier pointed out by him having itself referred to
the „code of discipline‟ cannot now deny the same.
39. I am of the view that the right claimed by IAKU during arguments, of
participation in discussions at the local level has been claimed in vacuum,
without pleading and disclosing as to what decisions are taken at local level
and how representation therein only of the majority / recognised trade union
is prejudicial. Moreover, it is not the case that the said practice has been in
vogue. A stray reference by AAI in other context to „code of discipline‟
cannot form the basis thereof. Even otherwise, the clause of „code of
discipline‟ on which reliance is placed, also entails participation only in
handling of grievances of individual member and not of workers in general
at the local level. The petitioners are misconstruing the said clause. I am
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 22 of 24
also of the view that once the concept of recognition of only one trade union
as majority union is in vogue, no distinction can be made between those who
are members of that union and those who are not members of that union.
The trade union, upon its recognition, in the matter of representation of the
workers vis-a-vis management, ought to represent and is expected to
represent workmen/employees in general, without discriminating between
those workmen/employees who may be its members and those
workmen/employees who may be members of the rival trade union(s).
Though not in the context of recognised trade union, it was so held in
Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil
Corporation Ltd. (1991) 1 SCC 4 and I.T.C. Ltd. Workers Welfare
Association Vs. The Management of I.T.C. Ltd. (2002) 3 SCC 411. The
view taken by me is also in consonance with the President Labour
Organisation of HAL Vs. The Management of Hindustan Aeronautics Ltd.
MANU/KA/0297/2005. If at all the need is felt for different representation at
local and at central levels, the same is to be redressed not by seeking a
direction, as is sought in these petitions, but by representing for recognition
of trade unions at multiple level.
W.P.(C)No.283/2013, W.P.(C) No.754/2013, W.P.(C) No. 6446/2013 & W.P.(C) No.5357/2015 Page 23 of 24
40. No merit is thus found in W.P.(C) Nos.6446/2013 & 5357/2015 which
are dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
MARCH 17, 2016 „bs‟..
(Corrected and released on 30th April, 2016).
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