Karnataka High Court
The Vijaya Bank Ltd., Represented By Its ... vs The Vijaya Bank Employees Association, ... on 28 October, 2006
Equivalent citations: 2007 (2) ABR (NOC) 300 (KAR.) = 2007 (1) AIR KAR R 213, 2007 (1) AIR KAR R 213
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
ORDER H.N. Nagamohan Das, J.
Page 0080
1. In this petition, the petitioner has prayed for a writ in the nature of certiorari to quash the award dated 16.10.2001 in CR. No. 224/97 passed by the Central Government Industrial Tribunal-cum-Labour Court, Bangalore (for short the Tribunal) holding that circular No. 185/93 as not correct and directing the petitioner - Bank to negotiate with the first respondent-Union.
2. Petitioner is a banking institution having its branches all over the Country. There are about twelve thousand employees as on the date of filing the writ petition. Respondents 1 and 2 are Trade Unions representing the workers of the petitioner-Bank. The first respondent - Union was established in the year 1967. The petitioner - Bank was negotiating with the first respondent - Union right from 1967 and resolved all disputes by negotiations and settlement or through conciliation. The second respondent - Union emerged as a majority Union in the check-off method adopted in the year 1977. From 1978 till 1993, the petitioner-Bank was negotiating and settling the disputes with both the respondent - Unions. On 27.09.1993, the petitioner issued circular No. 185/93 recognising the second respondent - Union for the purpose of negotiations and settlements. The first respondent - Union raised a dispute before the Tribunal in CR. No. 224/97 by way of reference under Section 10(2A) of the Industrial Disputes Act, 1947 (for short the 'Act'). The schedule of reference is as under:
Whether the action of the management of Vijaya Bank is justified in denying the negotiating rights hither to extended by the management to the Vijaya Bank Employees Association unilaterally? If not, to what relief the union is entitled?
3. The Tribunal on the basis of the pleadings and material on record held the circular dated 27.09.1993 as not correct and directed the petitioner - Bank to negotiate with both the respondent - Unions. Hence this petition.
4. Sri. Subramanya, learned Counsel for petitioner contends, that the Tribunal committed an error in coming to the conclusion that the petitioner under circular No. 185/1993 excluded the first respondent Union from negotiations. He contends, that the Courts or Tribunals shall not interfere with the policy decisions framed by the management. The Tribunal failed to consider the number of documents produced by the petitioner to show that the second respondent Union commands the mandate of majority workman and therefore the petitioner it bound to give prominence to the second respondent Union in the matter of negotiations.
5. Sri. M.C. Narasimhan, learned senior counsel for second respondent Union supports the contentions of learned Counsel for petitioner. He contends, that the impugned award is not a speaking order. Without providing an opportunity to the second respondent Union, the impugned award came to be passed affecting the rights of second respondent Union and therefore the same is liable to be quashed. The petitioner Bank and the workers in the Bank have not agreed to the code of conduct and in the absence of code of Page 0081 conduct, the impugned circular No. 185/1993 dated 27.09.1993 recognising the second respondent Union which enjoys the support of majority workers is in accordance with law.
6. Sri. Rajagopal, learned Counsel for first respondent Union contends, that in the circular No. 185/1993 the Bank has stated three reasons for recognising the second respondent Union for the purpose of negotiations and the said three reasons are unfounded and they are not justified. He contends, that right from 1967 till the impugned circular dated 27.09.1993 came to be issued, the petitioner Bank was negotiating with both the Unions. Even now the petitioner Bank is negotiating with both the Unions and entering into settlements. Therefore, contends that there is no justification for the petitioner Bank from deviating with the tradition of negotiating with both the Unions. The petitioner Bank at the instance of second respondent Union and to eliminate the first respondent Union from the Bank got issued the impugned circular No. 185/1993. He justifies the impugned award. Reliance is placed on the following decisions.
1. V.V. Joseph and Ors. v. Union of India and Ors.
2. State of Punjab and Anr. v. Gurdial Singh and Ors.
3. Laxmikant Revchand Bhojwani and Anr. v. Pratapsing Mohansingh Pradesh, deceased through his Heirs and Legal Representatives
4. Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia and Ors.
5. Commissioner of Police, Bombay v. Gordhandas Bhanji
6. Mohinder Singh Gill v. Chief Election Commissioner
7. Kerala Minerals Employees Congress v. Assistant Labour Commissioner and Ors. 1983 (I) LLJ 424
7. Heard arguments on both the side and perused the entire writ papers.
8. Prior to 1967 there was no trade union representing the workmen in the petitioner - Bank in 1967 the first respondent - Union came to be registered under the Trade Union Act, 1926 representing the workmen in the petitioner - Bank. From the year 1967 the petitioner - Bank recognised the first respondent - Union as negotiating Union. In the year 1977 through a check-off system the second respondent - Union emerged as largest Union having the support of large segment of workmen. From 1977 the petitioner - Bank recognised both the first and second respondent - Unions as negotiating trade Unions. The petitioner - Bank was holding simultaneous but separate negotiations with both the Unions and simultaneous but separate Page 0082 settlements were being signed. On 27.09.1993 the petitioner - Bank issued circular No. 185/1993 discontinuing earlier system of simultaneous but separate negotiation with both the Unions. The second respondent - Union was recognised as sole negotiating Union and the first respondent - Union as only endorsing Union. Thus the tradition of simultaneous but separate negotiation with both the respondent Unions was given a go bye. A tradition practiced for sufficient length of time will have a binding force. It cannot be said that every tradition is bad or impracticable or breeds new problems. If a particular tradition is found to be bad or impracticable or breeds new problems then certainly such a tradition is to be reversed or discontinued. The petitioner - Bank having recognised the first respondent Union as sole negotiating Union right from 1967 and both the Unions from 1977 up to 1993, have no justification to reduce the status of first respondent Union as only endorsing Union under the circular No. 185/1993. It is not shown to me as to how the tradition of negotiating with both the Unions is impracticable, bad or inconvenient or that it breeds new problems. Therefore the impugned circular No. 185/1993 is bad in law.
9. The petitioner - Bank in the impugned circular No. 185/1993 stated that due to the following three reasons there is some uncertainty regarding dealing with the Unions:
a. Uncertainty as to which Union held the majority of membership of workmen/staff in the Bank.
b. Legal proceedings initiated by VBEA, one of the recognised workmen Unions and the stay orders issued by the Courts.
c. Delay in the process of verification of membership of the Government machinery.
It is not in dispute that up to 1977 the first respondent - Union was the sole recognised Union for the purpose of negotiations. It is also not in dispute that from the year 1977 up to 1993 the second respondent Union was enjoying the support of largest segment of workmen in the Bank. The first respondent - Union is enjoying the support of substantive section of the workmen in the Bank. The latest check off system discloses that the first respondent - Union enjoyed the support of 35.75% and the second respondent - Union enjoyed the support of 49.66% of workmen in the Bank. Therefore there is no substance in the first reason stated in the circular No. 185/93 that there is uncertainty as to which Union enjoyed the support of majority workmen. So also there is no substance in the third reason that there is delay in the process of verification of membership by the Government. Right from 1977 once in every two years the check off system is held and at every time the percentage of support of workmen enjoyed by both the Unions was disclosed. Even if there is any delay at any point of time in conducting the check off system, the same cannot be attributed to the first respondent - Union. The alleged delay, if any, was not an impediment for negotiations. Further, there was no litigation pending as on the date of issuing the circular No. 185/1993. The litigations that were pending between the parties have nothing to do with negotiations. It is not Page 0083 shown as to how the litigations that were pending hampered the process of negotiations. Therefore the reasons slated in the circular No. 183/1993 do not justify the order.
10. The petitioner - Bank has not formulated its own scheme or method to recognise a Union or Unions for the purpose of negotiations. There is no agreement between the Bank and its workmen to abide by the code of discipline. The code of discipline has no statutory force. Recognising majority union or the largest union at times may result in excluding large segment of workmen from the process of negotiation. Take for instance in an establishment where there are 5000 workmen and five unions. One Union enjoys the support of only 25% of workmen and the remaining 75% of workmen are equally distributed among the other four unions. Then the management will recognise the majority unions or the largest union having the support of 25% and excludes 75% workmen from the process of negotiation. A Division Bench of this Court in the case of KSRTC v. Workmen 2005 (I) KLJ 333 held, where there is any issue or dispute relating to the welfare of the employees or labour is involved, it is open to all the Unions to join together and to put forward a common demand and bargain with the management unitedly. If there are more than one union, then each union could be the watch dog of the activities of the other union so far as the interest of the labourer or employees are concerned. This view is affirmed by the Supreme Court in SLP (Civil) Nos. 3597-3598/2005 vide order dated 21.02.2005. Largely the method of involving more than one Union having the support of 15 to 20% of workmen in the process of negotiation is practicing in the industrial map of the Country.
11. The second respondent contends, that they are a recognised trade union in the circular No. 185/1993. Without making the second respondent as a party to the proceedings before the Tribunal, the impugned award is passed and therefore the same is liable to be quashed. This contention of petitioner is unacceptable to me. The second respondent Union is its publication called 'Prabhat Herald' October 1993 edition stated that the attempts of the VBEA (first respondent) to stay the implementation of this policy by ruling the RLC has failed. The second respondent is aware of the fact that up to 1993 both the Unions were involved in the process of negotiation. From 1993 the first respondent was excluded from the process of negotiation. The second respondent was also aware that the first respondent approached conciliation officer in respect of circular No. 185/1993. On failure of conciliation proceedings the dispute was referred to Tribunal. It cannot be said that second respondent was not aware of the proceedings before the Tribunal. The second respondent knowingly kept quite on the ground that the Bank is effectively justified the circular No. 185/1993 before the Tribunal. In identical circumstances the Supreme Court in the case of V.V. Joseph v. Union of India held:
After examining all the circumstances we do not agree with the petitioners that they had no information of the litigation at all. It appears that they Page 0084 were satisfied by the stand of the Union of India taken in their favour and in pursuing the matter from stage to stage. The Union of India therefore should in the present case, be deemed to have represented the petitioners' interest and the judgment cannot now be reconsidered. We accordingly dismiss the writ petition, but in the circumstances without costs.
Therefore the contention of the second respondent is liable to be rejected.
12. For the reasons stated above, the writ petition is rejected.