Madras High Court
Port And Dock Labour Union (Regn vs The Union Of India on 20 February, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.02.2013 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.No.3870 of 2008 1. Port and Dock Labour Union (Regn. No.394/MDS), Affiliated to Bharathiya Mazdoor Sangh, Rep. by its General Secretary, R.Santhanam. 2. Bharatiya Port & Shipyard Mazdoor Mahasangh (BMS), Rep. by its Vice President, R.Santhanam. .. Petitioners .. Vs .. 1. The Union of India Rep.by its Secretary, Ministry of Labour & Employment, Shram Aur Rozgar Mantralaya, New Delhi. 2. Managing Director Indian Ports Association, I Floor, South Tower, NBCC Place, Bhisham Pitamah Marg, Lodi Road, New Delhi. ...Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order passed by the 1st respondent bearing L-31011/21/2007-IR(B)-II dated 2.1.2008 and to quash the same and consequently direct the 1st respondent to refer the demands of the petitioners for adjudication to the Central Govt. Industrial Tribunal cum Labour Court within a time frame. For Petitioner : Mr.K.M.Ramesh for Mr.M.D.Thirunavukkarasu For Respondents : Mr.M.R.Dharanichander for R-2 * * * * * O R D E R
The first petitioner, Port and Dock Labour Union, affiliated to the second petitioner, has filed this writ petition for issuance of a writ in the nature of Certiorari, to quash the order dated 02nd January, 2008, declining to refer the industrial disputes to the Central Government Industrial Tribunal.
2.The impugned order reads as under:-
"Sir, I am directed to refer to Failure of Conciliation Report No.21/(63)/2007-IR dated 23.10.2007 from the CLC(C), New Delhi received in this Ministry on 30.10.2007 on the above mentioned subject and to say that, prima-facie, this Ministry does not consider this dispute fit for adjudication for the following reasons:
"The demand of recognition of union is not a subject matter of industrial dispute. The representation to the Bipartite Wage Negotiations Committee is given to the majority union only. The disputant union is a minority union and as per the recent check off system the membership of this union is only 1418. The demands of interim relief, merger of 50% D.A. in basic pay & regularization of contract workers are collective in nature and the union, with the marginal following, is not competent to raise such demands. Hence, the disputes raised are not maintainable."
3.The petitioner No.1 started functioning on 31.01.1972 and was affiliated with INTUC initially and thereafter, with AITUC. The petitioner No.1, thereafter, disaffiliated itself from AITUC and got itself affiliated with Bharathiya Port & Shipyard Mazdoor Mahasangh (BMS). The Bharathiya Port & Shipyard Mazdoor Mahasangh has got its affiliated unions functioning in 9 major ports of 11 major ports in India.
4.The case of the petitioner is that the last Wage Agreement between Port and Dock workers and the Port Managements was signed 10 years back, which expired on 31.12.2006 and that the new Wage Agreement was due with effect from 01.01.2007.
5.The case of the petitioners is that petitioner No.2 applied to the Secretary, Ministry of Shipping and Transport, New Delhi, to include it as one of the Federation for Bipartite Wage Negotiation on 28.05.2003. The petitioner No.2 was informed that their request would be considered when Bipartite Wage Negotiation Committee is formed. However, when the Wage Negotiation Committee was constituted, the second petitioner was not included in the said Committee.
6.It is also pleaded that since the Ministry of Shipping and Transport delayed forming of committee for Wage Negotiation, all the Federations functioning in major ports issued a strike notice. The second petitioner also issued a strike notice dated 14.08.2007, along with its charter of demands. The Chief Labour Commissioner (Central) took up the issue relating to the strike notice and held conciliation proceedings. The second petitioner was also called for conciliation by the Chief Labour Commissioner (Central). The second petitioner decided unilaterally to withdraw the strike notice, but pressed the other demands raised by it. The demands having not been met, the Chief Labour Commissioner promised to send his Failure Report under Section 12(4) of the Industrial Disputes Act, 1947.
7.The Chief Labour Commissioner (Central), thereafter, conducted verification of membership of all the trade unions functioning in the major Ports and submitted his verification report to the Ministry of Shipping and Transport and the Ministry of Labour. The result of the verification report has not been published.
8.The case of the petitioner is, even though the membership of respondent No.2 has increased considerably, the Ministry of Shipping and Transport deliberately omitted to include the name of the second petitioner as one of the constituent for Bipartite Wage Negotiation Committee, under the instructions of the Ruling party.
9.The petitioner filed W.P.No.33859 of 2007 praying for issuance of writ of mandamus directing the Ministry for Shipping and Transport and the second respondent herein to include the name of the second petitioner in the Bipartite Wage Negotiation Committee for arriving at the Wage Agreement from 01.01.2007 onwards.
10.The Hon'ble High Court, vide order dated 31.11.2007, directed the first respondent herein to pass appropriate orders on the Failure Report sent by the Chief Labour Commissioner (Central), within a period of eight weeks from the date of receipt of a copy of the order and to communicate it to the parties. This Court had not accepted the request of the petitioner for issuance of writ in the nature of mandamus, directing the respondent No.1 to include the second petitioner as one of the party to the negotiation. The relief claimed was modified and directions were issued to the Union of India to pass appropriate orders on the failure report sent by the Chief Labour Commissioner (Central), New Delhi.
11.The demands raised by the petitioners were as under:-
Demands for Strike Notice
1. Recognize Bharatiya Port & Shipyard Mazdoor Mahasanth affiliated to BMS and give recognization to its affiliated unions.
2. Provide representation to BPSMM federation in existing BWNC (Bipartite Wage Negotiation Committee for port employees)
3. Immediate sanction of Rs.1,200/- PM as interim relief to all port employees.
4. Merger of 50% D.A. in Basic as demanded by Central BMS & our federation earlier immediately.
5. Retirement age should be 60 years in ports.
6. Regularization of all contract workers in ports and immediate filling the vacancies by dependents of deceased and medical unfit employees."
12.The impugned order has been passed by the Union of India in refusing to refer the disputes by holding that the representation in the Bipartite Wage Negotiation Committee cannot be subject matter of reference.
13.The learned counsel for the petitioners vehemently contended, that the impugned order cannot be sustained in law, because it was not open to the Central Government to go into the merit of the disputes, as it is for the Central Government Industrial Tribunal to adjudicate the matter.
14.The impugned order is also challenged on the ground of it being the outcome of non-application of mind, inasmuch as the demands raised by the petitioner was not for participation in the Bipartite Negotiation, as said request had been declined by this Court itself, while refusing to grant the relief claimed in the writ petition, but was to consider the other demands, based on failure report.
15.I find force in the contention of the learned counsel for the petitioners. The impugned order, on the face of it, is arbitrary and hit by Article 14 of the Constitution of India, as respondent No.1 has not gone into the question whether the Failure Report qua demands 2 to 6 was to be referred for adjudication before the Central Government Industrial Tribunal or not ?
16.At the sake of repetition, it may be mentioned here, that the Central Government, while deciding whether the reference has to be made or not, has to see whether there exists a dispute, without going into the merit of the dispute, as it is for the Labour Court/ Industrial Tribunal to decide the dispute.
17.Consequently, the writ petition is allowed. The impugned order is set aside. The case is remitted back to respondent No.1, to consider the Failure Report with regard to the demands other than the first demand, as the first demand stands rejected by this Court in the earlier writ petition filed by the petitioner, and take a decision as to whether a reference is to be made to Industrial Tribunal or not. This needful be done within two months for receipt of certified copy of this order.
18.No costs.
20.02.2013 Index : Yes Internet : Yes sra To
1. The Union of India Rep.by its Secretary, Ministry of Labour & Employment, Shram Aur Rozgar Mantralaya, New Delhi.
VINOD K.SHARMA,J.
(sra) W.P.No.3870 of 2008 20.02.2013