Andhra HC (Pre-Telangana)
India Leaf Spring Kamgar Union Rep. By ... vs Commissioner Of Labour, Govt. Of A.P. ... on 28 August, 1997
Equivalent citations: 1997(6)ALT70
ORDER B.K. Somasekhara, J.
1. The simple and clear question involved in this writ petition is whether the respondents can be directed by this Court in its powers under Article 226 of the Constitution of India to hold the elections to the petitioner-union which is a trade union registered under Section 8 of the Trade Unions Act, 1926 (for short 'the Act') and by virtue of Rule 11 of the Rules of the petitioner-Union and Clause (2) of the Code of Discipline (for short 'the Code') said to have been evolved by the managements in regard to both public and private sectors for the smooth running of administration of labour laws. The respondent No. 1 is the Commissioner of Labour, Government of A.P. whereas respondent No. 2 is the Assistant Commissioner of Labour, Circle-II, Ranga Reddy District under whose jurisdiction the petitioner-Union comes. The background in which the petitioner is trying to enforce the grievance in this writ petition may be stated in brief, the facts mentioned thereunder appear to be not in controversy.
2. The petitioner-Union was registered on 9-3-1984 by the Deputy Registrar of Trade Unions under Registration No.A-2503 by virtue of Section 8 of the Act. It appears that the Commissioner of Labour, Government of A.P. conducted union verification election in India Leaf Spring Company to determine the majority Union in August, 1988. The period of verification election was to be done every two years and the Labour Commissioner suo motu was to hold next elections in the year of August, 1990. But no such elections were conducted by the Labour Commissioner. The petitioner submitted a memorandum in this regard on 17-10-1996 and based on that the 1st respondent issued a memo No.E1 /24289, dated 11-12-1996 appointing the 2nd respondent as Verification Officer to conduct the union election in India Leaf Spring Company of which the petitioner is the Union. The Verification Officer issued first notice on 25-1-1997 calling for the records and registers and membership list etc., and issued second notice on 17-2-1997. The petitioner Union submitted the registers and records of membership on 12-2-1997 and other Unions also submitted the records and registers. The petitioner alleged that thereafter, the 2nd respondent did not take any action in the matter and thus the interests of the petitioner and the workmen are being affected in relation to their claim with the management which is allegedly harassing the workers etc., and affected their collective bargaining power which is guaranteed under the Industrial Disputes Act, 1947. It is alleged that the respondents have not fixed the schedule of election for verification and to determine the majority union and therefore they have violated the principles of natural justice and Articles 14 and 19(1)(c) of the Constitution of India. As there was no response from the respondents in spite of representations as supra, the petitioner had to file the present petition seeking direction to the respondents to dispose of the application of the petitioner by fixing the union election schedule in India Leaf Spring Company, Nacharam, R.R. District without any further delay.
3. On behalf of respondent No. 1, while not disputing the facts stated above, it is pointed out that a show cause notice has been issued to the management of India Leaf Spring Company for non-recognition of the majority Union under Section 2(ra) read with Section 25-U, V Schedule item 2(b) of the Industrial Disputes Act, that was challenged by the management in W.P.No.13943/89 and the show cause notice has been stayed in W.P.M.P.No.18474/89 by order dated 29-9-1989 and in view of the pendency of the writ petition, the elections could not be held in the said industrial establishment. Therefore the order issued on 11-12-1996 was kept in abeyance by Memo No.E1/24289/96, dated 22-2-1997 pending decision of this Court in the writ proceedings supra. It is also contended that the writ petition is not maintainable as per the settled law, that no such direction can be issued to respondents as they are not discharging statutory duties under any provisions of law except by virtue of the rules or bye-laws of such trade unions and also the Code of Discipline.
4. The learned Government Pleader for respondents has relied upon a decision of this Court in Manik Rao v. Deputy Commissioner of Labour, Twin Cities of Hyderabad, 1979 (2) An.W.R. 394 in support of his contention that as per the settled law therein, this writ petition under Article 226 of the Constitution of India is not maintainable. As against this, Mr. G. Abdul Khader, learned Advocate for the petitioner relied upon a latest pronouncement of a Division Bench of this Court in Writ Appeal No. 872/97 (The V.S.P. Mines Employees Union v. The Rashtriya Ispat Nigam Ltd. and Ors., Writ Appeal No. 872/97, dated 31-7-1997) dated 31-7-1997 in support of his contention that the view taken in Manik Rao's case is no longer in operation in view of the pronouncement in the said precedent referring to Writ Petition No. 29353/96 which reads as follows:
"Since the law in recent times has taken notice of the presence of a statutory duty under the Trade Unions Act, regulations and instructions issued thereunder and similar other provisions including obligations which parties create upon themselves by agreement that, for ascertaining or establishing majority, a public duty is cast upon all concerned. The above observations in the judgment of the learned single Judge may not in all circumstances be taken as a correct legal view. As to when mandamus, however, shall issue and in what circumstances public duty shall be taken to be performed or required to be performed by persons involved for ascertaining the majority membership of a trade union, shall have to be decided on facts of each case. This case, however, has ceased to be one such cases in which this issue should be taken up in appeal for a decision as the appeal has become infructuous. It shall accordingly be left for decision in an appropriate case."
While concluding its view on such an expression made above, it was pointed that whether Mandamus would issue in such a situation depends upon the facts of each case, however, after all the materials are placed before the Court by the contending parties.
5. On factual situation and the legal implication flowing therefrom, particularly in this case, this Court is of the considered opinion that the view taken by this Court in Manik Rao case (supra) is not absolute or a binding precedent and subject to the facts and circumstances of each case, as laid down by the Division Bench in V.S.P. Mines Employees Union case (cited supra), the Court has to examine whether, in a given situation, an authority is exercising the statutory functions and it is for the Court to examine whether Mandamus or any direction can be issued to enforce or ensure the requisite compliance of such a duty.
6. Admittedly, the petitioner is a trade union registered under Section 8 of the Act. Rule 11 of the Rules of the Petitioner only enjoins that the Union shall have President etc., to be elected in an Annual General Body Meeting in addition to their eligibility for their re-election. It has nothing to do with the mode of election or the authority to hold election. It is only by virtue of the Code there is a procedure for membership of the Unions for the purpose of recognition under the Code. The Chief Labour Commissioner will undertake to arrange verification of membership of Unions entitled to recognition under the Code and arrange for elections. The Code is said to have been evolved as a measure between the management and the workmen for the purpose of maintaining discipline in the industry. There is no source of power under which such a Code is framed. Neither the preamble nor the clauses in the Code give any indication as to authority or the persons who are responsible in issuing such a Code of Discipline for the purpose of enforcement in Court of law. If the rules of the petitioner and the Code supra are no basis to give relief in this writ petition, this Court apprehends whether the petition is maintainable. But the matter cannot be rested at that stage only as rightly pointed by the learned Advocate for the petitioner. The real epicentre in regard to the rights of the Trade Union and the functions of the authorities to hold elections etc., on verification is a source in the provisions of the Industrial Disputes Act and the relevant provision is Section 2(k) which reads as follows:
"Industrial Dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person."
As rightly postulated by the learned Advocate for the petitioner, the elections to Union forbears the settlement of dispute between workmen and workmen. Moreover, the womb of the law in such a situation does not totally rests either in the rules of the trade Unions or in Code of Discipline but elsewhere. The expression 'statutory duty' or 'statutory obligation' may not always lie in a particular statute either like the Trade Unions Act or the Industrial Disputes Act or any other relevant law dealing with such a situation. The origin is found in the true implication of the Provisions of the Evidence Act also. Section 114 illustration (e) of the Evidence Act presumes that judicial and official acts have been regularly performed. However, it is the discretion of the Court to draw such a presumption within the expression of 'may'. But when the facts disclose the basis, the Court is not only entitled to draw an inference but also will do well in drawing presumption to maintain the legal and the human order as a whole. If we read the true implication of Section 114 of the Evidence Act, that enjoined thereunder is enjoining normally in course of natural events and human conduct and public and private business. In this expression 'public duty' and the 'official duty' are also contemplated to know whether it is the Official act or public act to give a clothing of the statutory requirement. In the present case, as in the other cases where a party is called upon to perform a duty like holding elections, it cannot be performed in the individual capacity. In the communication dated 25-1-1997 of respondent No. 2 addressed to the President and other office bearers of the trade union, the preamble says:
"I have been appointed by the Commissioner of Labour, A.P., Hyderabad as Verification Officer to conduct verification of membership of eligible Trade Union operation in India Leaf Spring Ltd., Nacharam under Code of Discipline to determine the eligibility of the Union for the purpose of recognition by the management."
The source of power derived to respondent No. 2 through respondent No. 1 is by means of an official order passed by respondent No. 1 in Memo No.E1/24289/96 dated 11-12-1996. Otherwise, there was no reason for respondent No. 2 to act in such a situation. Patently, such a communication has been issued by respondent No. 2 under the banner of Government of A.P., Labour Department. They could not have acted in the individual capacity except in the legal garb of the official status and on behalf of the Government of A.P. through the Labour Department. The simple test whether such a conduct or act is official act or not can be gathered from Section 74 of the Evidence Act which deals with public documents which are enumerated as follows:
"(1) Documents forming the acts or records of the acts-
(i) of the sovereign authority;
(ii) of official bodies and tribunals and
(iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents."
The communication of respondents 1 and 2 supra cannot be but a public document within the meaning of Section 74 of the Evidence Act. Such document enjoins the presumption not only under Section 114 of the Evidence Act but also for the purpose of proof under Secs.76 and 77 of the Evidence Act to prove by mere production of such a document. In the counter affidavit filed on behalf of the 1st respondent, it is not stated that one of such functions was not an official act or public act. The only reason given in the counter affidavit for non-conformance of the required act was due to the pendency of the writ petition supra. The status of the respondents as public authorities or officers in dealing with the matter of the petitioner is not main issue of fact or law. Whether an act of an authority is individual or private depends upon the manner and the method in which it is performed. The test is whether it can be done in the individual capacity or designata, persona designata or non-persona designata. No such test is passed in this case by the respondents' non- performance of such a function in relation to the petitioner. Therefore, this Court is totally convinced that the act undertaken by the respondents is one of the official acts having the garb of a statutory force for the purpose of performance. That is how a Division Bench of this Court in the decision supra has declared the law that the question whether a particular authority is exercising the statutory functions or not depends upon the facts and circumstances of each case. Having examined the facts and circumstances of this case, this Court is totally convinced that the respondents are performing the official acts amounting to statutory discharge of the functions to attract the powers of the Court to exercise under Article 226 of the Constitution. Therefore, within the law declared above, the petitioner is justified in approaching this Court seeking the relief as claimed.
7. The only question is whether the pendency of the writ proceedings in this Court as above has stalled the progress of the functions of the respondents in relation to the elections to the union of the said industry. That is a matter to be examined in the light of the proceedings before the Court. Barring that there is no reason for the respondents to stop further progress in the matter.
8. The writ petition is allowed and the respondents are directed to continue their task in relation to verification of the membership etc., of the Unions of the India Leaf Spring Company Ltd., including the petitioner Union and to hold elections as is required and in pursuance of the communication of respondent No. 2 dated 25-1-1997 supra. However, the respondents are at liberty to verify the implication and the effect of the Writ Proceedings No. 13943/89 pending in this Court and unless such proceedings has blocked their functions in such a capacity, the further steps to be taken up in relation to their task stated above shall not be stopped. Such a decision shall be taken within a period of One Month from the date of communication of a copy of this order. No costs.