Madras High Court
Ranipet Greaves Employees Union vs The Commissioner Of Labour on 12 March, 2010
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.03.2010 CORAM: THE HONBLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.23725/2008 & M.P.Nos.1,2&3/2008 Ranipet Greaves Employees Union (Regn. No.624/NAT) Rep. by its General Secretary, 6/343, BHEL Anna Nagar, Seekarajapuram, Ranipet. ... Petitioner -vs- 1.The Commissioner of Labour, DMS Complex, Teynampet, Chennai 600 006. 2.Labour Officer-I Krishna Nagar, Vellore -1 3.Greaves Employees Development Union, Rep. by its General Secretary, No.22, Basha Street, Ranipet 632 401. 4.Greaves Mazddor Sangam Rep. by its General Secretary, No.6, Kanar Kaikaran Street, Thoppu Kanna, Arcot, Vellore District. 5.Greaves Labour Union, Rep. by its Secretary, No.20 A, Velumudaliyar Street, Ranipet 632 401. 6.The Management of Greaves Cotton Ltd, Light Engineer Unit II, No. 72, Sipcot Industrial complex, Ranipet 632 403 Rep. by its General Manager- Manufacturing & 6 others. ... Respondents (R6 impleaded as per Court order dated 04.12.2009 in M.P.No.1/2009) Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the respondents 1 and 2 to conduct the election by secret ballot to enable the workers of Greaves Cotton Ltd. factory at Ranipet, to elect their representative body for recognition. For Petitioner :Mr.V.Prakash Senior counsel for Mr.D.Anbarasu For Respondents :Mr.P.Subramani AGP for RR1 2 Mr.G.B.Saravanabhavan for R3 Mr.A.L.Soyamajee Senior counsel for Mr.G.R.Swaminathan & Usharaman for R4 Mr.Balan Haridoss for R5 Mr.Sanjay Mohan for M/s.S.Ramasubramaniam Associates for R6 O R D E R
By consent the main writ petition is taken up for disposal. The prayer in the writ petition is for issue of writ of mandamus to direct the respondents 1 and 2 to conduct the election by secret ballot to enable the workers of the sixth respondent management to elect their representative body for recognition and for further appropriate directions.
2. The petitioner is a registered Trade Union bearing Reg. No.624/NAT and according to the petitioner, they enjoyed the confidence of majority of workmen, namely 240 workmen out of the 390 employed in the sixth respondent factory. A settlement under Section 12(3) of the Industrial Dispute Act (hereinafter referred to "as the Act") was entered into on 09.08.1990. In terms of such settlement election has to be held to elect one Union, which gets majority votes, which will be recognized by the management and such recognized Union shall be the sole negotiator with the management in respect of all issues concerning the workmen. That elections were conducted once in two years and the settlement had been working well for nearly 18 years. The last of such election, which was by secret ballot was conducted during 1999 and the Union had a two year term during which it was recognized and after the expiry of the term in 2001 elections were not held. The petitioner union therefore requested the second respondent to conduct elections in terms of the Section 12(3) settlement. By reply dated 08.03.2002, the second respondent declined to conduct election by secret ballot since, the respondents 3 and 4 who are also trade Unions did not agree for election by secret ballot.
3. The petitioner filed a writ petition before this Court in W.P.No.33200/2002 to quash the proceedings of the second respondent dated 08.03.2002 and to direct the respondents 1 and 2 to conduct Union election to elect a representative body and accord representatives in the sixth respondent factory. The fifth respondent in this writ petition was also a petitioner in W.P.No.33200/2002 along with the petitioner Union. The third respondent and fourth respondent herein were also the third and fourth respondent in W.P.No.33200/2002. The management was not impleaded as a party respondent. This Court by order dated 05.09.2003 allowed the writ petition and quashed the order of the second respondent dated 08.03.2002 and directed the respondents 1 and 2 to conduct the Union elections to elect a representative body of the workers to accord representatives in the sixth respondent factory within a period of eight weeks from the date of receipt of the order. The respondents 3 and 4 filed W.A.No.3110/2003 against the order in the writ petition. The Hon'ble Division Bench while entertaining the writ appeal granted interim stay of the order made in W.P.No.33200/2002. The order of interim stay was in force till the writ appeal was dismissed on 24.08.2006. After the writ appeal was dismissed, the respondents 1 and 2 conducted elections by secret ballot on 10.10.2006 and the total number of votes polled was 302 and the petitioner Union secured 281 and the others secured 21. Therefore, the petitioner was considered as the recognized Union being a representative body to represent the workmen.
4. On 30.12.2006, the previous wage settlement entered into between the Union and the management expired and the petitioner terminated the settlement and raised fresh charter of demands. The conciliation proceedings between the Union and the management failed and thereafter the Government referred the matter for adjudication before the Industrial Tribunal and the same is pending as ID No.20/2008 on the file of the Industrial Tribunal, Chennai. Subsequently, by representation dated 29.08.2008, the petitioner requested the first respondent to conduct elections in terms of the order passed in W.P.No.33200/2002 by stating that the last elections were conducted was during 2006 and the period of two years would expire on 09.10.2008 and therefore, requested for conduct of elections. Copy of the Judgment in W.A.No.3110/2003 and the results of the election held on 10.10.2006 as intimated by the second respondent were enclosed along with the representations. Since no action was taken on the representation, the petitioner union is before this Court by way of this writ petition.
5. In this Writ petition, the management was not initially impleaded as a respondent, subsequently, the management filed a petition in M.P.No.1/2009 to implead themselves and this Court by order dated 04.12.2009, impleaded the management as the sixth respondent in the writ petition. A counter affidavit has been filed by the respondent management inter-alia contending that the present management took over the sixth respondent factory from M/s.Enfield India Limited on 01.02.1994 and the sixth respondent employs 314 permanent workmen and that the workmen are represented by four Unions, namely the petitioner and the respondents 3 to 5. The settlement entered under Section 12(3) of the Industrial Dispute Act on 09.08.1990, expired in 1992 and thereafter the management entered into three Memorandum of Understanding (MOU) between the petitioner Union and the respondents 3 to 5 on 18.05.1995, 09.09.1997 and 06.08.1999. The third respondent Union was not a signatory to the MOU dated 18.05.1995, and the respondents 4 and 5 were not parties to the MOU dated 06.08.1999, the petitioner was a party to all the three MOUs.
6. It is further submitted that under the MOU dated 06.08.1999, a provision was made for selection of a committee, which is in the nature of a representative body and under the said MOU, the previous two MOUs dated 18.05.1995 and 09.09.1997 were accepted. This committee which was agreed to be constituted was termed as the negotiating council. The negotiating council entered into a wage settlement on 21.12.1999 under Section 12(3) of the Industrial Act and after the settlement out lived its purpose and completed its obligation arising therefrom, there was no continuing obligation upon the parties much less upon the management. It is further stated that a settlement under Section 12(3) of the Industrial Act was entered into dated 20.04.2004 with the respondents 3 and 4 and this wage settlement is stated to have been implemented by all workmen of the sixth respondent management including the workmen belonging to the petitioner Union.
7. It is further submitted that the management was not a party to W.P.No.33200/2002 and did not have an opportunity to put fourth its views or bring to the notice the question of interpretation of the settlement and in such circumstances the prayer sought for by the petitioner Union is unjustified, when the sixth respondent management is willing to talk to all unions. It is further submitted that on 02.01.2007 a dispute was raised by the petitioner union and ultimately an award was passed in ID No.20/2008, which is subject matter of challenge in W.P.No.4697/2005. It is the further case of the management that the settlements dated 09.08.1990, and the MOUs dated 18.05.1995, 09.09.1997 and 06.08.1999 have been terminated by the management and the management by letter dated 30.10.2008 requested the second respondent to permit them to negotiate with all Unions and the said letter is still pending before the second respondent. Further the management would contend that the writ of mandamus would not lie in the nature as prayed for by the petitioner since, there is no legal right in the petitioner to seek recognition and since the management was not a party to the earlier writ petition as well as the Writ Appeal, the same would not bind the management and the elections held in 2006 would not be a legal compulsion upon the management at this point of time and in the absence of any statute in the State of Tamil Nadu compelling grant of recognition to any Union, there is no legal right for the petitioner to seek for elections by secret ballot for recognition. That even under the Section 12(3) settlement dated 06.08.1999 it provided for only a committee and there is no continuing obligation upon the management in this regard. Based on the above grounds the sixth respondent prayed for dismissal of the writ petition.
8. The third respondent union would contend that the writ petition is not maintainable in law and the recognition granted to the petitioner union lapsed on 09.10.2008 and since the earlier settlements were terminated, the petitioner cannot rely upon the same. It is further contended that a private dispute has been brought before this Court by impleading the respondents 1 and 2 and a trade Union is neither an instrumentally or an agency of state and no public duty is discharged and no public function is discharged and not amenable to the jurisdiction of the Court under Article 226 of the Constitution of India. Therefore, the third respondent prayed for dismissal of the writ petition.
9. The fourth respondent union would contend that there is no inherent right for the petitioner union and there is no statutory Rule for claiming relief in the writ petition. In the absence of any statutory Rule to sustain such relief, no writ of mandamus could be issued as prayed for by the petitioner. It is further contended that the second respondent is only a conciliation officer and in the absence of conciliation between workmen and the management, he could only submit a failure report and intimate the failure of conciliation and he cannot be directed to conduct elections by issuing a writ of mandamus. Thus, it is contended that the petitioner union is indirectly seeking to adjudicate a labour issue before this Court. It is further contended that the fourth respondent union has preferred SLP 16468 of 2006 before the Hon'ble Supreme Court against the order in W.A.No.3110/2003 and the same is still pending. Finally, the fourth respondent would contend that the earlier settlement having been cancelled, it cannot be relied upon and since the present dispute is a private dispute between the Unions, the writ petition is not maintainable.
10. The fifth respondent union would claim that it has substantial following among the workmen of the sixth respondent factory and multiple unions are reality in Industrial sector and multi-polar is the ethos of democracy and every union has got a right to represent its members and directly talk to the management about grievances of its members and enter into settlement under Section 18(1) of the Industrial Dispute Act, which would bind only the members of such union. It is further submitted that the fifth respondent union is not against the conduct of election every two years and in fact the fifth respondent supported the petitioner union in the election held on 10.10.2006. However, the petitioner union has no legal right to prevent the other unions from negotiating with the management or raising disputes before the conciliation officer. In the earlier proceedings before this Court, the settlement entered into under Section 12(3) dated 09.08.1990 was relied on and held to be binding and based on the Judgment, the elections were conducted by the respondents 1 and 2 on 10.10.2006 and the period of 2 years for which the negotiating council was elected came to an end of 09.12.2008 and there is no provision in the 12(3) settlement dated 09.08.1990 stating that the elected body continues to enjoy the status till the next union election. By referring to clause 3 of the settlement dated 09.08.1990, it is contended that the elected union automatically looses its recognition, after expiry of the two years and therefore, the petitioner is no longer the recognized union. As per clause 1 of the settlement the elected body should negotiate with the management and such prohibition is only for two years and if the interpretation given by the petitioner is accepted then the petitioner would continue to be the representative body in perpetuity and this would be contrary to the settlement dated 09.08.1990 and against the spirit of the Industrial Dispute Act. It is further contended that the prayer sought for in the interim application has no connection to the relief sought for in the main writ petition and therefore both the writ petition and the application for interim relief are liable to be dismissed.
11. Based on the above pleadings the parties are before this Court. Heard Mr.V.Prakesh, learned senior counsel appearing for the petitioner, Mr.Sanjay Mohan, learned counsel appearing for the sixth respondent, Mr.G.B.Saravanabhavan, learned counsel appearing for the third respondent union, Mr.A.L.Soyamajee learned senior counsel appearing for the fourth respondent and Mr.Balan Haridoss, learned counsel appearing for the fifth respondent.
12. The learned senior counsel appearing for the petitioner would contend that the writ petition is maintainable and the order passed by this Court in the earlier writ petition in W.P.No.33200/2002 confirmed by the Hon'ble Division Bench is binding on the management. The Special leave petition filed by the fourth respondent union is pending before the Hon'ble Supreme Court and it is being repeatedly adjourned at the instance of the fourth respondent by circulating letters of adjournment. It is further contended by the learned senior counsel where there are multiple trade unions in a management the question of recognition comes in and the concept of sole bargaining agent is a recognised and accepted concept and the trade union which enjoys the majority support would represent the workmen and the contention that the sixth respondent management will speak to all unions is untenable and against the principle of sole bargaining agent. The learned counsel would further submit that though the management was not a party to the earlier writ petition and writ appeal, the management accepted the Judgment of this Court, elections were held, the petitioner union was recognized as the representative body by the management, negotiations were held with the petitioner by the Management and since there was no settlement, an industrial dispute was raised and therefore the management cannot at this stage contend that the order is not binding on them. The management having not filed any appeal against in orders in W.P.No.33200/2002 and W.A.No.3110/2003, is attempting to fight a proxy litigation and there cannot be a different position after the order passed in W.P.No.33200/2002 was confirmed by the Hon'ble Division Bench. In effect the management is seeking to over rule the earlier order passed by this Court, which was confirmed by the Hon'ble Division Bench. As regards the settlements entered into between 05.09.2003 and 24.08.2006, it is contended that during the said period of there was a stay of the Judgment in W.P.No.33200/2002 and the settlements were entered into with the other unions during the period of stay and that the management is attempting to adopt a policy of divide the rule. Further it is contended that only when there is a consent for a secret ballot, the same could be adopted and in the instant case, there is already a consent and the management having accepted the earlier order of this Court, cannot adopt the present stand. It is further contended even against trade unions interim orders could be granted and this cannot take away the power of this Court and there is no strict law that no contract could be interfered by this Court under Article 226 of the Constitution of India.
13. Further that in the instant case, the parties themselves agreed to resolve the dispute and the agreed that a public official shall conduct the election and in such circumstances, the writ petition is maintainable against such public official more so because the obligation to conduct election is pursuant to a settlement under Section 12(3) of the Industrial Disputes Act. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Balmer Lawrie Workers' Union, Bombay and another Vs. Balmer Lawrie & Co. Ltd and others - 1984 (Supp) SCC 663, Food Corporation of India Staff Union Vs. Food Corporation of India and Others - 1995 2 LLJ 272 and the decisions of the Hon'ble First Bench of this Court in MRF United workers Union Vs. Government of Tamil Nadu and others in W.P.No.17991/2008 and W.A.674/2009 dated 08.09.2008. The learned senior counsel would submit that the Judgment in the case of MRF United workers Union, referred supra, has been stayed by the Hon'ble Supreme Court, but the same looked into as the Judgment has not been reversed.
14. Mr.Sanjay Mohan, learned counsel appearing for the sixth respondent Management would contend that the conduct of the management cannot clothe the petitioner with an enforceable right under Article 226 of the Constitution of India and since the private respondents are not statutory bodies, mere acceptance of the order passed by this Court in the earlier writ petition confirmed by the Hon'ble Division Bench cannot confer a right on the petitioner. It is further submitted that the management was not a party to the earlier writ petition and all matters subsequent to 12(3) settlement dated 09.08.1990 could not be placed before this Court in the earlier writ. It is further contended that in the case of MRF, referred by the learned senior counsel for the petitioner, the Hon'ble First Bench, discountenance the method of secret ballot. It is further contended that even in the 1990 settlement contemplated only a representative body there is no prejudice caused if the management speaks to all the unions. The learned counsel referred to Section 19(5) of the Industrial Disputes Act and stated that the Hon'ble Supreme Court has interpreted and held that the word "award" according in Section 19(5) could be read as settlement also. The learned counsel placed reliance on the decision in the MRF case as well as the decision of the Hon'ble Supreme Court in Life Insurance Corporation India Vs. D.H.Bahadur and others- 1981 1 SCC 315, and the code of discipline, which was ratified by the Central Employees and Workers Organisation, which code was held to be binding the Hon'ble First Bench of this Court in the case of MRF, referred supra. Finally, the learned counsel submitted that the writ petition is liable to be dismissed as not maintainable.
15. Mr.A.L.Soyamajee, learned senior counsel appearing for the fourth respondent union would contend that the prayer against the respondents 3 to 5 are not maintainable, since they are registered trade unions. The prayer sought for cannot be granted, since there is no statutory duty or obligation to hold elections and in the absence of any law regarding recognition of trade unions in State of Tamil Nadu, there is no statutory duty on the respondents 1 and 2 to conduct elections and therefore the writ of mandamus is liable to be dismissed. It is further contended by the learned senior counsel that inter union rivalries can only be adjudicated before the appropriate forum under the Industrial Disputes Act and no such Mandamus could be issued more so when special leave petition is pending before the Hon'ble Supreme Court against an order in W.A.No.3110/2003. Several settlements have entered into with the management and they have been implemented from time to time and the respondents 3 to 5 have terminated the settlement dated 09.08.1990 and 06.02.2006 and the MOUs dated 18.05.1995 and 09.09.1997 and the management also terminated the same on 26.09.2008 and therefore question of conducting elections as per such settlement does not arise.
Further the learned senior counsel would contend that interim order which has been granted restraining the management from negotiating with the respondent Unions is beyond the scope of the main writ petition and such interim order cannot be granted especially when writ petition itself is not maintainable and the respondents 3 to 5 are not amenable to the writ jurisdiction of this Court. The learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in The Praga Tools Corporation Vs. Shri.C.Imanual and others - 1969 (1) SCC 585 and Chairman, State Bank of India and another - 2003 AIR SCW 3760 and the decision of the Kerala High Court in Chemosyn Private Ltd. and others Vs. Kerala Medical and Sales Representatives Association and others - Vol. 71 FJR 355.
16. Mr. Balan Haridoss, learned counsel appearing for the fifth respondent by relying upon the definition of an Industrial Dispute under Section 2 (k) of the Industrial Disputes Act would contend that disputes between the workmen and workmen also would encompass an industrial dispute and also relied on rule 25 B of the Tamil Nadu Industrial Dispute Rules 1958. It is further contended that after 2008 the recognition of the representative body automatically lapses and the petitioner union cannot cling on to the settlement and now the management is willing to discuss with all the unions and the same will be a larger democracy and the interim order granted by this Court is working great prejudice against the members of the fifth respondent union and the petitioner union seeks to monopolies the situation and this is against industrial democracy. It is further contended that there is no single union, which is recognized and what was contemplated was only a negotiation council since the 1990 settlement was replaced in 1999. It is submitted that as on date the writ petitioner has no legal right. Finally, the learned counsel would submit that the fifth respondent union is agreeable for election for electing a negotiation council.
17. I heard the submissions all the learned Senior counsels and learned counsels for the parties and perused the materials available on record.
18. The writ petitioner trade union has approached this Court for a direction to direct the respondents 1 and 2 to conduct an election by secret ballot to enable the workers of the sixth respondent Management to elect their representative body for recognition. The first and foremost ground on which the respondents resisted the claim made by the petitioner is that a Writ Petition is not maintainable for such a relief and the petitioner cannot compel this Court to direct the respondents 1 and 2 to hold elections, since there is no law in the State of Tamil Nadu regarding recognition of trade Union and there is no statutory duty cast upon the respondents 1 and 2 to conduct elections. At the first blush, it would appear that the controversy in the present case is a inter union dispute which normally this Court would venture into in a petitioner under Article 226 of the Constitution of India, but in the instant case, there appears to be a distinction from the normal line of cases, which project a inter union dispute simplicitor. Therefore, it becomes necessary to consider as to what is the peculiar feature of the present case, which call for interference in the present writ petition or as to whether the writ petition is liable to be thrown out on the ground that it is a inter Union rivalry and the parties to be relegated to the Industrial forum for agitating their rights. For this purpose, it is necessary to look into certain facts. It is not in dispute that the 6th respondent management has 390 permanent workmen and the petitioner and respondents 3 to 5 are the four trade Unions, which have been formed by the workmen of the sixth respondent and each claiming to have substantial following. The present management had taken over on 01.02.1994 and even prior to the taking over a settlement under Section 12(3) of the Act was in vogue. This 12(3) settlement, dated 09.08.1990, was entered into the petitioner and the sixth respondent and clause 1 of the settlement states that for the purpose of projecting the common grievances of the workmen and bonus and to negotiate with the management, the workmen have to elect one trade Union and it is that trade Union alone shall negotiate with the management for on behalf of all workmen and the management also agrees to such in clause No.3 of the settlement, it was agreed to between the trade Union and this management that the second respondent shall conduct the election for such purpose and the union and the management are agreeable to such proposal. The Union which is elected as the representative Union shall be recognised by the Management and the recognition shall be valid from 01.09.1990 to 31.08.1992 and thereafter such recognition shall automatically lapse. This settlements had been working well for 18 years and elections were held once in 2 years and the election by secret ballot was held by the second respondent during 1999, and the term of recognition expired in 2001. Thereafter, the petitioner Union requested the second respondent to conduct election by secret ballot. The second respondent by communication dated 08.03.2002 declined the request made by the petitioner by stating that the respondents 3 and 4 herein did not agree for secret ballot. Therefore, the petitioner and the fifth respondent Union filed W.P.No.33200/2002 before this Court. The prayer in the writ petition was to quash the order dated 08.03.2002 passed by the second respondent, wherein the second respondent conveyed inability to conduct the elections. Admittedly, the sixth respondent management was not a party respondent in the writ petition. Elaborately arguments had been advanced before this Court and the writ petition was allowed by this Court by an order dated 05.09.2003, at this stage, it is relevant to refer to the operative portion of the Judgment which reads as follows:-
"6.It has been held in a series of decisions by the Apex Court that Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute, that Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found and that technicalities should not come in the way of granting that relief under Article 226 of the Constitution of India. Further, to have industrial peace and harmony, the trade union has to exist by following democratic means and norms. One of the methods is to have Office Bearers duly elected under the bye-laws. In this case it is not disputed that 12(3) settlement dated 09.08.1990 enables election to the union once in two years under the supervision of the Labour Officer and, in fact, elections were held in the previous years namely 1994, 1997 and 1999 and no election has been held after 2001. I am unable to understand the attitude of the 2nd respondent in rejecting the request of the petitioner which is totally different. In similar circumstances, K.S.Bakthavatsalam,J., in Writ Petition No.6415 of 1991, dated 2.7.1992, directed the Labour Officer to conduct election for office Bearers and Executives committee Members of the workers union. Similar directions were also issued by K.Govindarajan,J, in Writ Petition No.8721 of 1998 dated 04.02.1999 and K.Raviraja Pandian. J., in Writ Petition Nos.2551 of 1999 etc., batch dated 12,02.2001. It is also relevant to refer a decision of the Apex Court in F.C.I. Staff Union v. Food Corporation of India, reported in AIR 1995 Supreme Court 1344 wherein Their Lordships have held that in an industry or a concern more than one unions exists, it is but proper to conduct secret ballot and elect representatives to represent them before the Labour Officer or before the Management as well as Officers prescribed under the Act. In the said decision, the Supreme Court after prescribing norms and procedures, directed the Food Corporation of India to hold elections in accordance with the procedures mentioned by them.
7.In the light of what is stated above, the impugned order of the second respondent dated 08.03.2002 is quashed and respondent 1 and 2 are directed to conduct the union elections to elect a representative body of the workers to accord representatives in the Greaves Limited Factory at Ranipet within a period of eight weeks from the date of receipt of a copy of this order. Writ Petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed."
19. Thus, this Court by relying on various decision of the Hon'ble Supreme Court held that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by a statue and it is very wide remedy and must be easily available to reach injustice wherever it is found. Referring to the Section 12(3) settlement and the various other earlier orders passed by this Court as well as the decision of the Hon'ble Supreme Court in F.C.I Staff Union Vs. FCI, AIR 1995 SC 1344 came to a conclusion that when there are more than one union in an industry, it is proper to conduct secret ballot and elect representatives of the Union. Therefore, this Court directed to conduct the union elections to elect representative body of the workers to accord representatives in the 6th respondent factory. The third and fourth respondents herein filed an appeal against the order in the writ petition in W.A.No.3110/2003, it is stated that during the pendency of the appeal the order passed in the writ petition remand stayed.
20. Ultimately, the Hon'ble Division Bench by Judgment dated 24.08.2006, dismissed the Writ Appeal. It is to be noted that the main ground of challenge in the writ appeal was that the earlier settlement entered into under Section 12(3) of Act was no longer in force and it is not permissible in law to rely on such settlement and settlements have no force of law and the writ petition itself is not maintainable. The decision relied on by the appellants were considered by the Hon'ble Division Bench and the Hon'ble Division Bench held that the facts of the present case, though the settlement was arrived at between the four unions in the presence of the Labour officer none of the parties to the settlement has given any notice to the others to the non-operation of the settlement and therefore, the Judgment relied on by the appellants were held to be not applicable to the facts of the case. The Hon'ble Division Bench took note of the decision in Life Insurance Corporation of India Vs. D.J.Bhadur (1981 I LLJ (1),(SC) regarding the validity of the settlement and held that the respondents 3 and 4 herein, who were the appellants in the Writ Appeal except submitting letter to the Labour Commissioner that they are not interested to go on with the election as per the settlement dated 06.08.1999 and that they have not given any notice to any of the parties to the settlement dated 06.08.1999 for the cancellation of the settlement or for replacement of the clauses of the settlement under Section 19(2) of the Act. Therefore, the contention raised by the appellants came to be rejected. The Hon'ble Division Bench also considered the objection, which was raised as regards the maintainability of the writ petition, at this stage it is relevant to refer to the decision of the Hon'ble Division Bench in this regard:-
"11. ... we are of the view that when a settlement was entered into between the parties, it has a statutory force under Section 12 of the I.D. Act and it is for the Labour Officer to implement the settlement till it is cancelled or varied by any subsequent settlement between the parties. On earlier occasions, as per the settlement between the appellants and the respondent unions, directions were given to conduct the elections and, therefore, the appellants cannot now turn around and contend with regard to maintainability of the writ petitions. We are, therefore, of the view that the writ petition was maintainable."
21. Ultimately, the writ appeal came to be dismissed on 24.08.2006 and direction was issued to conduct election as per the terms and conditions of the settlement dated 09.08.1990. After the dismissal of the writ appeal, elections were conducted by the second respondent on 10.10.2006 and the petitioner union is stated to have secured 281 votes out of the 302 valid votes and the others are secured 21 votes. The management accepted the results of such secret ballot as declared by the second respondent and the petitioner came to be recognised as the sole bargaining agent of the workman in the sixth respondent factory. Though, it has been submitted that a Special Leave Petition has been filed against the order in W.A.No.3110/2003 no interim orders have been passed by the Hon'ble Supreme Court and it is stated that the respondents 3 and 4 herein, who are the appellants before the Hon'ble Supreme Court are repeatedly seeking for adjournment before the Hon'ble Supreme Court.
22. Thus, it is to be seen that the following aspects of the matter had attained finality, after the dismissal of W.A.No.3110/2003; that there is no dispute regarding the settlement dated 09.08.1980, that elections were held in 1994, 1997 & 1999 in accordance with the settlement dated 09.08.1980 and after the period came into 2001 election was not held and pursuant to the direction issued by this Court, elections were held on 10.10.2006. The representative body which was elected in such election was recognized by the management and the management also accepted the said factual position, in the Writ Petition, this Court took note of the fact that the management in their letter dated 29.12.2004 addressed to the labour officer requested for conduct of election. Further, the writ of mandamus cannot be denied and the remedy is very wide and to have Industrial peace and harmony, trade union have to exists following democratic means and norms and one such method is to have the office bearers elected.
23. Thus the sheet anchor of the arguments advanced by the respondents 3 to 6 have already been answered in the earlier writ petition in W.P.No.33200/2002 dated 05.09.2003 and confirmed in W.A.No.3110/2003 dated 24.08.2006. As long as these orders have not been set aside by the Hon'ble Apex Court, it would bind the parties and this Court is also obliged to follow the dictum. The learned counsel appearing for the management would contend that the management was not a party to the earlier round of litigation and therefore, the Judgment is not binding. According to the management, since they were not arrayed at the party respondents certain facts could not be placed before this Court in the earlier round more particularly the fact that there is no legal right for the petitioner to seek for recognition and the settlements dated 09.08.1990 and 06.08.1999 have worked itself out.
24. In my view, the stand taken by the management is untenable and unacceptable since nothing prevented the management to come before this Court either to seek for review of the order passed in W.P.No.33200/2002 or prefer an appeal against such decision. It was also open to the management to get themselves impleaded in the proceedings as they have now done in this writ petition, and place whatever facts they had in their mind and raise all defence open to them. However, for reasons best known the management did not intervene in the earlier writ proceedings nor filed any writ appeal. Even, thereafter, after the Hon'ble Division Bench dismissed the Writ Appeal on 24.08.2006, it was well open to the management to seek redress before the Hon'ble Apex Court and agitate their grievance if any and this step has also not been resorted to. On the other hand the management allowed the elections to be conducted on 10.10.2006, by the second respondent accepted the results of the election announced by the second respondent and recognized such representative body, which was elected in the election conducted by the second respondent. Thus, the management was apparently aware of the entire proceedings and it reminded as a silent spectator allowing the trade Unions to vindicate their grievances before this Court and chose to accept the decision of this Court after the dismissal of the writ appeal. In fact, it has to be taken that the management had acquired themselves of both the factual and legal position.
25. Therefore, it would be too difficult a proposition to accept that since the management was not a party to the earlier round of litigation and allowing the election to be held in 2006 would not be a legal compulsion upon the management to accept the present state of affairs, where in the claim has been made by the petitioner to conduct election by secret ballot. It is to be noted that even in this writ petition, the management was initially not a respondent, it is the management who themselves sought for impleading them in the writ petition and the prayer was granted by this Court on 04.12.2009 and the management was impleaded as sixth respondent. There is no answer to the question as to why the management did not resort to such a step in the previous litigation. The only conclusion, which could be arrived at, is that the management accepted and order of this Court in the earlier round of litigation without any demur and implemented the same in its letter and spirit. For all the above reasons, I am unable to subscribe to the defence raised by the learned counsel appearing for the management that they are entitled to agitate the points which had already been concluded in the earlier round of litigation. In my view, if the stand taken by the management is accepted it would tantamount to reviewing the earlier order in W.P.No.33200/2002 dated 05.09.2003, which has been confirmed by the Hon'ble Division Bench in W.A.No.3110/2003 dated 24.08.2006. This is wholly impermissible under law.
26. Elaborate submissions were made by the learned Senior counsel appearing for the respondent union by contending that no writ of mandamus would lie since the trade union is not a statutory body and there is no statue compelling conduct of election. In this regard much reliance was placed on the decisions of the Hon'ble Supreme Court in the case of The Praga Tools Corporation Vs. Shri.C.A. Imanual and others, 1969 (1) SCC 585, referred supra. The decisions relied on by the Hon'ble Supreme Court while considering the question whether the writ petition was maintainable against a company, the Hon'ble Supreme Court held that the High Court was correct in holding that the writ petition filed under Article 226 of the Constitution of India claiming against the company was not maintainable and the writ claimed was against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act, but under an agreement.
27. At this stage, it is relevant to refer to the paragraph 6 & 7 of the said Judgment, held as follows:-
"6. in our view the High Court was correct in holding that the writ petition filed under Article 226 claiming against the company mandamus or art order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not be, but the company who sought to implement the impugned agreement. No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc, or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal V. Union of India 1975 SCR 738). In Regina V. Industrial Court and others (1965) 1 QB 377, mandamus was refused against the Industrial Court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. "This Court has never exercised a general power" said Bruce, J. in R.V. Lawisham Union (1897) 1 QB 498, 501 "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statue under or by which the society is constituted or governed and also to companies or corporations 10 carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statue for the purposes of fulfiling public responsibilities. (CF. Halsbury's Laws of England, (erd ed.), Vol II, P. 52 and onwards).
7. The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could be lie against the company."
27. In the above referred paragraphs the Hon'ble Supreme Court held that an application will not lie for an order of reinstatement to an office, which is essentially a private character nor can such an application be maintained to secure performance of obligation owed by a company to its workmen or to resolve any private dispute. The facts in the said case was that after a settlement was arrived at between the company and the union, a supplementary settlement was entered into not to retrench or lay of workmen during the stated period and the settlements were arrived at under Section 18(1) of the Industrial Disputes Act. The respondent workmen therein filed a Writ of Mandamus to restrain the respondents for impleading or unenforcing the said agreement. The Regional Assistant Commissioner was also added as one of the respondent, considering the facts and circumstances of the case, the High Court of the Andhra Pradesh rejected the writ petition as not maintainable and the Hon'ble Division Bench of the High Court held that though the writ petition was not maintainable, it could grant the declaration in favour a few workmen in the impugned agreement was illegal and void. It is against the such Judgment of the High Court of Andhra Pradesh, the management was on appeal before the Hon'ble Supreme Court and considering the facts and circumstances of the case, the Hon'ble Supreme Court held that the writ was not maintainable, since the writ was obviously against the company and not against a conciliation officer and not in respect of any public or statutory duty.
28. In my view, the above decision of the Hon'ble Supreme Court does not render assistance to the case of the respondent Union. The facts in the present case are couched differently. The second respondent was the officer nominated to conduct the election under the settlement entered into under Section 12(3) of the Act. Section 12 of the Act deals with Duties of Conciliation Officers, Section 2 (d) defines Conciliation Officer to mean a conciliation officer appointed under the Act. Section 12 provides that the conciliation officer may hold conciliation proceedings in the prescribed manner where any industrial dispute exists or is apprehended. Sub Section 2 of Section 12 enjoins a duty on the conciliation officer to investigate the dispute and do all such things for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute and on such settlement being arrived at, in terms of Sub-Section 3 of Section 12, the conciliation officer shall send a report thereof to the appropriate government or an officer authorised in this behalf by the appropriate government together with a memorandum of settlement signed between the parties to the dispute. Therefore, a settlement brought about under Section 12 (3) is pursuant a statutory exercise done by the conciliation officer and the underlying assumption is that a settlement arrived at with the help of the conciliation officer must be a reasonable and fair settlement and it could be made applicable not only to the workman of the union signing the settlement, but also on others and such settlement under Section 12(3) of the Act are placed on par with an award made by an adjudicatory authority (refer 1991 1 LLJ 46).
29. Therefore, the issue in the present case cannot be stated to be wholly within the realm of a private dispute, since what is sought to be implemented is a settlement arrived at in the presence of a conciliation officer under Section 12(3) of the Act. That apart, the petitioner's have not sought for a writ of mandamus against the company, but it is against the second respondent in whose presence such settlement was arrived at and by consensus between the workmen and the management, the second respondent agree to conduct the elections and in fact conducted the same every two years from 1990 onwards. Therefore, the prayer sought for in the writ petition has to be held as maintainable against the second respondent as the writ petition is not directed against a private management or the respondent trade unions. In fact this issue regarding maintainability was also concluded in the earlier round of litigation and the plea raised by the respondents 3 and 4 herein was also raised in W.A.No.3110/2003 and the contention came to be rejected by the Hon'ble Division Bench. Therefore, the respondent unions being parties to the Judgment and the respondent management having accepted the Judgment without demur cannot be now allowed to re-agitate the concluded issue. In fact, they are estopped from raising such issue which an issue of fact complied with law.
30. As the prayer sought for is not against the trade Union, the decision relied on by the learned counsel appearing for the fourth respondent of the Kerala High Court in the case of Chemosyn Private Limited and others Vs. Kerala Medical and Sales Representatives Association and others, is not applicable to the facts of the present case. At this stage, it is relevant to note that the observations of the Hon'ble Supreme Court as regards the concept of a recognition Union and a need for such recognition as held in the case of Balmer Lawrie Workers' Union, Bombay and another Vs. Balmer Lawrie & Co Ltd. and others 1984 (Supp) SCC 663, referred supra, wherein the Hon'ble Supreme Court held as follows:-
"12. A need was felt that where there are multiple unions seeking to represent workmen in an undertaking or in an industry, a concept of recognised union must be developed. Standing Labour Committee of the Union of India as its Twenty-ninth Session held in July 1970 addressed itself to the question of recognition of trade union by the employer. In fact even amongst trade union leaders there was near unanimity that the concept of recognised union as the sole bargaining agent must be developed in the larger interest of industrial peace and harmony. National Commission on Labour chaired by late Shri.P.B.Gajendragadkar, former Chief Justice of India, after unanimously and whole-heartedly expressing itself in favour of the concept of recognised union and it being clothed with powers of sole bargaining agent with exclusive right to represent workmen, addressed itself only to the question of the method of ascertaining which amongst various rival unions must be accorded the status of a recognised union. Planting itself firmly in favour of democratic principle, it was agreed that the union which represents the largest number of workmen working in the undertaking must acquire the status as that would be in tune with the concept of industrial democracy. The fissures arose as to the method of finding out the membership. The Commission had before it two alternative suggestions for ascertaining the membership, (i) verification of membership by registers and (ii) by secret ballot. As there was a sharp cleavage of opinion, the Commission left the question of adopting one or the other method in a given case to the proposed Industrial Relations Commission which was recommended to be set up if the recommendations of the Commission were to be accepted. What is of importance to us is that everyone was agreed that where there are multiple unions in an industrial undertaking or an industry, the union having the largest membership of the workmen must be clothed with the status of recognised union and consequently as the sole bargaining agent. The underlying assumption was that the recognised union represents all the workmen in the industrial undertaking or in the industry."
31. The Hon'ble First Bench of this Court, while considering the important question with respect to the procedure for recognition of a trade union as representative body of workmen in an industry in the absence of specific statutory provision of law in MRF United workers Union Vs. Government of Tamil Nadu and others in W.P.No.17991/2008 and W.A.674/2009 dated 08.09.2008, after referring to the decision in the Balmer Lawrie Workers' Union, Bombay and another Vs. Balmer Lawrie & Co. Ltd and others - 1984 (Supp) SCC 663, F.C.I Staff Union Vs. FCI, AIR 1995 SC 1344, Automobile Products of India Employees Union V. Association of Engineering Workers, Bombay and Others reported in 1990 (2) SCC 444, held as follows:-
"37. Having noted this scenario and considering that there is continuous strife in the company, in our view, the Court cannot simply remain a silent spectator. We are aware that the Court has its own limitations while exercising jurisdiction to issue appropriate writ or direction. On analyzing the provisions of Article 19(1) (c), it recognizes the right to form association and also the mandate of Industrial Disputes Act that there should be recognized union and when there is a inclination of the State Government to accept a particular procedure, which is otherewise also accepted in different statutes throughout the country, in our view, the correct course will be to give a direction to the Commissioner of Labour to call upon the two unions to submit their membership details as per the Code of Discipline and examine their membership as provided under the Code over a period. In the event, there are. any objections, the objections could be verified in the light of clause -7 of the Code of Discipline by personal interrogatories so as to arrive at the correct membership of either of the two trade unions. Alternative to this procedure namely, ballot system, which although is recommended by the Committee of the ILO, is not accepted in any of the statutes which have been brought to our notice. The recommendations of the Committee can only be respected to this effect that there has to be a collective bargaining agent of the workmen, which is to be a truly and independent representative agent. As far as the methods suggested by the Committee is concerned, it would result into determination on the basis of the facts arrived at a particular point of time, which has not been very much appreciated as a proper method. The method of verification on the other hand will show the following of a particular union over a longer period and would definitely be a better option. The other alternative approach is to say that none of the methods is recognized and therefore the choice of the management will prevail. That certainly cannot be permitted in view of the provisions of the fifth schedule of the Act. The Code of Conduct has a force of acceptance of the organizations of the workers and of the Management and also of the Government, and is being followed in different undertakings. Further, it is also in tune with the provisions of the different statutes in different States.
38. In the circumstances, in our view, the only alternative, as stated above, is to direct the State Government and the Commissioner of Labour to conduct the exercise as per the code of Discipline, to which the State Government is agreeable. Accordingly, the Petitioner Union may apply to the concerned Labour Commissioner within two weeks from today presenting the claim of its membership figures during the last six months i.e., for the period from 1st March, 2009 to 31st August, 2009. On receipt of such an application, the concerned Labour Commissioner will issue notice to the two unions, within tow weeks from the date of receipt of the application, calling upon them to submit their membership registers and the necessary supportive documents under the Code of Discipline within tow weeks from the date of receipt of the notice by them. The notice will call upon them to produce their records as per the Code of Discipline during the period of six months prior to the date of notice. The Labour Commissioner shall thereafter proceed to decide as to which Union is the representative union of the workman. We cannot permit the Management to say that the Union which shows the larger membership at the end of the exercise will not be recognized by the Management. Recognition is for the purpose of representing the causes of the workmen in various for a including before the Management and various authorities under the Labour Law. It is not a determination available for the sole satisfaction of the Management. It is a factual determination and the determination leads to a status. The Union which establishes a larger membership at the end of the aforesaid exercise, shall be recognized as the representative union.
39. The writ petition is allowed with the aforesaid directions. In view of the disposal of the writ petition with the directions specified above, the writ appeal stands disposed of. The miscellaneous petitions will stand disposed of. Those workmen who want to avail the benefit of the settlement will be free to accept it, though it will be open to the petitioner union to challenge the legality and validity thereof by taking appropriate steps by raising demand and carrying the matter to the Industrial Tribunal.
40. The writ petition is accordingly allowed, though we refrain from awarding any costs. The writ appeal stands disposed of."
32. The learned counsel appearing for the sixth respondent would contend that the decision of the Hon'ble First Bench of this Court in MRF case has been stayed by the Hon'ble Supreme Court, the learned Senior counsel appearing for the petitioner would submit that the Judgment could be looked into as it has not been reversed by the Hon'ble Supreme Court.
33. For all the reasons set out in the preceding paragraphs, I am inclined to accept the submissions made by the learned Senior counsel appearing for the petitioner. The Management and the respondent unions have contended that the settlements stood cancelled. The very same contention was raised by them before the Hon'ble Division Bench in W.A.No.3110/2003 and in paragraph 10 of the Judgment, the Hon'ble Division Bench after referring to the FCI case, rejected the contention raised regarding cancellation of such settlement. Therefore, this contention of the Management and the respondent unions are liable to be rejected.
34. Therefore, the parties to the present writ petition cannot be allowed to re-agitate the matter and as long as the decision rendered in the earlier round of litigation has not been stayed or reversed by the Hon'ble Supreme Court, the second respondent is bound to act in accordance with the direction issued, as was done by the second respondent, when elections were conducted on 10.10.2006. Accordingly, the writ petition is allowed as prayed for and the respondents 1 and 2 are directed to conduct elections by secret ballot to elect a representative body of the workers to accord representatives in the sixth respondent factory within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs.
12.03.2010 Index :Yes/No Internet:Yes/No pbn To
1.The Commissioner of Labour, DMS Complex, Teynampet, Chennai 600 006.
2.Labour Officer-I Krishna Nagar, Vellore -1 T.S.SIVAGNANAM, J.
pbn Pre-Delivery Order in W.P.No.23725/2008 12.03.2010