Karnataka High Court
Bangalore Nagara Poura Karmikara ... vs The State Of Karnataka on 27 June, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NO.12383 OF 2012 [L-RES]
C/W WRIT PETITION No.11904 OF 2012
WP No.12383/2012
BETWEEN
Bangalore Nagara Poura
Karmikarasangha,
Bangalore, represented
By General Secretary,
Regd.No.DRT/(B-1)TUA/7/74-75
Having its office in
The Mahanagara Palike,
Head office Buildings, N R Square,
Bangalore - 560 002. ... Petitioner
(By Sri K.Subba Rao, Senior Counsel for
Sri M Subramanya Bhat, Advocate for
M/s Subba Rao & Co.)
AND:
1. The State of Karnataka,
Represented by its Secretary,
Department of Labour,
M S Building, Bangalore - 560 001.
2. The Bruhath Bangalore
Mahanagara Palike,
Represented by the Commissioner,
N R Square, Bangalore - 560 002.
3. The Labour Commissioner,
Karmika Bhavana,
Bannerghatta Road,
Bangalore - 560 029. ... Respondents
2
(By Sri N B Vishwanath, AGA for R1 & R3;
Sri Subramanya R, Advocate for
M/s Ashok Haranahalli Associates for R2)
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the resolution
dated 31.5.11 in subject No.38/11-12 passed by R2, a true
copy of the same vide Annx-B and etc.
WP No.11904/2012
BETWEEN:
M/s Karnataka Rajya Poura Noukarara Sangha,
Having office at Byatarayanapura Zone office,
Bruhat Bangalore Mahanagara Palike,
Bellary Road,
Bangalore - 560 092.
Rep. by its General Secretary,
Mr.K.B.Chandrashekaraiah. ...Petitioner
(By Sri B Keshava Murthy, Advocate for
KLK Law Associates)
AND:
1. The State of Karnataka,
Rep. by its Secretary,
Department of Urban Development,
M S Building, Bangalore - 560 001.
2. The Department of Personnel and
Administration Reforms,
Vidhana Soudha,
Dr Ambedkar Veedhi,
Bangalore - 560 001.
Rep by its Under Secretary.
3. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
N R Square, Bangalore - 560 002. ...Respondents
(By Sri N B Vishwanath, AGA for R1 and R2;
Sri Subramanya R, Advocate for
M/s Ashok Haranahalli Associates for R3)
3
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to call for the records on
the file of the R3, Commissioner, BBMP, Bangalore in
Ref.No.B12(C1) PR37/11-12 Dated 5.4.12 and etc.
These petitions, coming on for dictation, this day the
Court made the following:
ORDER
These two petitions are heard, clubbed together and are being disposed of by this common order as the question of facts and law involved are one and the same. The facts narrated are with reference to the pleadings and annexures found in the first petition, namely, W.P.No.12383/2012
2. The petitioner's grievance is over the second respondent's failure to hold the referendum for the purpose of ascertaining the relative strength of the 13 trade unions and its decision to hold the elections to the two unregistered unions - one for the officers and employees and the other for the poura karmikas and gangmen working in the second respondent Bruhat Bangalore Mahanagara Nagara Palike ('B.B.M.P.' for short).
4
3. The facts of the case in brief are that the petitioner is a trade union registered under the provisions of the Indian Trade Unions Act, 1926. There are 11 unions apart from the two petitioners' trade unions functioning in the B.B.M.P. If there are more than two trade unions, a referendum is to be held for determining the trade union, which enjoys the majority of the support of the workmen. The union securing at least 50% support shall get the sole bargaining agent. If no union gets the said mark, the one securing the highest number of votes become the sole bargaining agent and depending on their votes, the other unions will get the status of the associated negotiating union. The petitioner in W.P.No.12383/2012 and 11904/2012 submitted the representations, dated 30.12.2011 (Annexure-C) and 29.03.2012 (Annexure-G) respectively for holding the referendum.
4. Meanwhile, the respondent No.2 passed the resolution in its meeting held on 31.05.2011 to hold elections to the two associations, one for the officers and employees and the other for poura karmikas and 5 gangmen. The resolution further states that until such time that the election process is completed, all the facilities given to the trade unions are to be withdrawn by the Commissioner of B.B.M.P. and that no recognition is to be accorded to their self-proclaimed office bearers. A copy of the resolution is at Annexure- B. The B.B.M.P. requested the third respondent Labour Commissioner to hold the elections to the two associations vide its letter, dated 18.01.2012 (Annexure- D). The third respondent Labour Commissioner replied vide his letter, dated 25/30.01.2012 (Annexure-E), stating that it is open to the B.B.M.P. to hold the elections for purpose of deciding the sole bargaining agent, etc. The reply further states that recognition of the trade union is the prerogative of the employer. The Labour Commissioner opined that the secret ballot be held as per the Code of Discipline in Industry. Without holding the secret ballot for determining as to which union is to be recognised as the sole bargaining agent and which union is to be determined as the associated negotiating union, if need be, the B.B.M.P. has issued 6 the calendar of events for holding the elections to the two associations - one for its officers and employees and the other for its poura karmikas and gangmen.
5. Sri K.Subba Rao, the learned Senior Counsel appearing on behalf of Sri Narayana Bhat for the petitioner submits that the B.B.M.P. is resorting to unfair labour practices. It is infringing the fundamental rights of the workmen employed by it. Instead of holding the referendum for determining the relative strength of the trade unions, the respondent No.2 is holding elections to the two un-registered, un-named, un- recognised, non-existent unions. Such course is arbitrary, illegal and without the authority of the law, so contends the learned Senior Counsel.
6. He submits that the procedure formulated for deciding the representative character of the trade union by secret ballot system is being disregarded.
7. The learned Senior Counsel relies on the decision of the Apex Court in the case of DAMAYANTI NARANGA v. THE UNION OF INDIA AND OTHERS reported in AIR 1971 SC 966, wherein it is held that 7 the right to form an association necessarily implies that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law, by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.
8. He also relies on the Apex Court judgment in the case of CHAIRMAN, STATE BANK OF INDIA AND ANOTHER v. ALL ORISSA STATE BANK OFFICERS ASSOCIATION & OTHERS reported in AIR 2002 SC 2279, wherein the rights of the recognised and non- recognised trade unions fell for consideration. It is held therein that non-recognised unions have no right to participate in the discussion relating to general issues concerning all workmen. But it can meet and discuss with management/employer about the grievances of any individual member relating to his service conditions and represent individual member/workman in domestic 8 enquiry or departmental enquiry and in the proceedings before conciliation officer and adjudicator.
9. He also relies on the Apex Court in the case of ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION v. B.NARASIMHA REDDY AND OTHERS reported in (2011) 9 SCC 296, wherein the extensive State control of co-operative societies came to be deprecated.
10. For buttressing his submission that the representative character of the trade union is to be assessed by holding the secret ballot, he relies on the Apex Court judgment in the case of DR.PUSHPA VISHNU KUMAR GURTU vs. STATE OF MAHARASHTRA AND OTHERS reported in AIR 1995 SC 1346.
11. He also relied on the Andhra Pradesh High Court's decision in the case of M.SITHARAMACHARY v. THE SENIOR DEPUTY INSPECTOR OF SCHOOLS, GANNAVARAM RANGE AND ANOTHER reported in AIR 1958 ANDH.PRA.78. Paragraph 11 read out by him is extracted hereinbelow:
9
"11. In the view I have taken, namely, that a teacher cannot be compelled against his will to become a member of an association and that R.3 which provides for compulsory membership of all the teachers in the Government sponsored associations, is invalid, the further question as to the validity of R.5, which provides that the members of the Association may elect a Secretary and Treasurer from among themselves subject to the approval of the President, does not arise."
12. Sri Subba Rao submits that the object of granting the recognition to the majority union is to achieve industrial peace and harmony. Without deciding as to which union has to be the sole bargaining agent, the attempts of the respondent No.2 to create two associations of its choice and compel all the workmen to be their members would only create industrial unrest. It amounts to unfair labour practices as per item No.2 in the 5th Schedule to the Industrial Disputes Act, 1947.
13. Sri N.B.Vishwanath, the learned Additional Government Advocate appearing for the respondent Nos.1 and 3 in W.P.No.12383/2012 and respondent Nos.1 and 2 in W.P.No.11904/2012 submits that 10 elections to the unregistered associations cannot be held at all.
14. Sri B. Keshava Murthy, the learned counsel for the petitioner in W.P.No.11904/2012 submits that holding the election to the association of officers and the workmen smacks off discrimination. It divides the officials and the workmen. He submits that the Commissioner, B.B.M.P. has no locus standi to conduct the election either for the association of the officials or for the association of the workmen, more so, when the associations are not in existence and when there are no bye-laws for conducting the elections.
15. Sri Subramanya, the learned counsel appearing for M/s. Ashok Haranahalli Associates for the B.B.M.P. submits that elections to the two associations are being conducted only for the smooth functioning of the B.B.M.P. and in the interest of the B.B.M.P. He submits that the petitioner's representation, dated 30.12.2011 (Annexure-C in W.P.No.12383/2012) is not received by the B.B.M.P. The receipt of such a representation is not even forthcoming from the inward 11 register. However, he submits that the representation, dated 29.3.2012 (Annexure-G in W.P.No.11904/2012) is received. He submits that the representation from yet another trade union is received on 30.3.2012.
16. The submissions of the learned counsel have received my thoughtful consideration.
17. Even when there is some dispute regarding the receipt of the representation in W.P.No.12383/2012, there is no dispute about the receipt of the representation in W.P.No.11904/2012. Even otherwise also, the B.B.M.P. has failed to hold the referendum to decide the relative strength of the respective unions by following the secret ballot system in accordance with the provisions of the Indian Trade Unions Act, 1926 and the Rules framed thereunder. Pursuant to the B.B.M.P's letter, dated 18.1.2012, the Labour Commissioner has also sent its response that the secret ballot be held for ascertaining who is to be given the status of the sole bargaining agent, etc. There is no justificatory reason for not holding the secret ballot for the purpose of giving the status of sole bargaining agent, etc., as admittedly 12 more than one trade union exist in the B.B.M.P. The second respondent B.B.M.P. is accordingly directed to hold the secret ballot for ascertaining the relative strength of 13 trade unions for the purpose of giving the status of sole bargaining agent and/or the associated negotiating agent, as the case may be.
18. The B.B.M.P. appears to have inter-linked the two issues - not holding the secret ballot amongst the members of the trade unions and holding of elections to the two proposed associations. While there is no legal impediment in creating as many associations as the B.B.M.P. wants and in holding elections to them, the same shall not be in derogation of the provisions contained in the Trade Unions Act and the Code of Discipline in Industry. The B.B.M.P. can hold elections to the two proposed associations - one for the officers and employees and the other for Poura Karmikas and Gangmen. But the office bearers of the said two associations shall have no right to participate in discussions relating to general issues concerning all workmen. But, their office bearers can meet and discuss 13 with the Management about the grievances of any individual member relating to his service conditions and represent individual member in domestic enquiry or departmental enquiry and in the proceedings before the conciliation officer, adjudicator, etc. In saying so, I draw support from the Apex Court's judgment in the case of Chairman (supra). The relevant portions of the said judgment is extracted hereinbelow:
"15.......................It is relevant to note here that the right of the citizens of this country to form an association or union is recognized under the Constitution in Article 19(1)(c). It is also to be kept in mind that for the sake of industrial peace and proper administration of the industry it is necessary for the management to seek co-
operation of the entire work force. The management by its conduct should not give an impression as if it favours a certain section of its employees to the exclusion of others which, to say the least, will not be conducive to industrial peace and smooth management. 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 14 workmen/employees are members if 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........................."
19. Further, while holding elections to the two proposed associations, the B.B.M.P. shall not compel any workmen to be a member of that association. Becoming or not becoming a member of an association is the right/option of the concerned party, which cannot be diluted by the Management or the employer. In this regard, what the Andhra Pradesh High Court has said in para 11 of its decision in the case of M.Sitharamachary (supra), is already extracted supra.
20. Now let me consider the petitioner's challenge to the B.B.M.P's resolution, dated 31.5.2011. The reason for proposing to create two associations and hold elections thereto is the inter union rivalry. Even if the rivalry exists, the same has to be resolved and if it is not resolvable, then also the B.B.M.P. has to only hold the 15 secret ballot for ascertaining which union can be granted the negotiating status.
21. The said impugned resolution withdraws all the facilities to the trade unions till such time that the elections are held to the two proposed associations. It further states that no recognition should be given to the office bearers of the trade unions. Such withdrawals and restrictions are also impermissible. The holding of elections to the proposed two associations cannot entail in the withdrawal of the facilities given to the trade unions and their office-bearers. At the most, the B.B.M.P. can direct the office bearers of the trade unions not to use the facilities given to them for electioneering purpose. If they defy such directions, action can be taken against them. However, in the instant case, that situation may not arise because the trade unions have distanced themselves from the proposed associations.
22. In the result, that part of the impugned resolution, which withdraws the facilities and the recognition to the office bearers of the trade unions is 16 concerned, is quashed. However, it is made clear that, that part of the impugned resolution, which proposes to hold elections to the two associations is left undisturbed.
23. The petitioner has further raised the challenge to the circular, dated 30.3.2012 (Annexure-J), which states that no request can be entertained for the postponement of the elections to the two proposed associations. In view of keeping that part of the resolution, dated 31.5.2011 pertaining to the holding of the elections intact, there is no need to quash the circular, dated 30.3.2012. Similarly, the calendar of events, dated 5.4.2012 (Annexure-K) is also not required to be quashed, as the B.B.M.P. can hold elections without taking away the rights of the workmen guaranteed under the Trade Union Act and without compelling any workmen of B.B.M.P. to become a member of the proposed association or to exercise the vote in the election of the office bearers of the proposed associations. The right to form trade unions is not merely a statutory right under the Trade Unions Act, 17 1926, but after the coming into force of the Constitution of India, a fundamental right guaranteed under the Article 19(1)(c) of the Constitution of India. (SOUTHERN RAILWAY MUZDOOR UNION vs. RAILWAY BOARD (2004) 2LW 407 (Mad)(DB)).
24. Sri Subramanya's submission that the calendar of events is revised is placed on record.
25. These petitions are accordingly disposed of. No order as to costs.
Sd/-
JUDGE Cm/-MD