Andhra HC (Pre-Telangana)
Indian Airlines Technical Assistants ... vs The Chairman And Managing Director, ... on 5 July, 1994
Equivalent citations: 1994(2)ALT509, (1995)ILLJ578AP
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
ORDER
1. This petition seeks a writ of Mandamus to direct the respondent to recognise the petitioner-union and to negotiate with it with regard to the conditions of service of its members.
2. The petitioner-Union was registered under the Trade Unions Act on 7-10-1992. It consisted of a category of workmen, known as Technical Assistants and its object was to seek betterment of its members with regard to their service conditions. It is stated that there were certain matters relating to their service conditions which were in dispute between the employees and the management and when several representations were made, the management turned a blind eye to them. The main averment in the petition is that the respondents were negotiating with Air Corporation Employees Union which was a majority union and since the petitioner was not satisfied with the efforts of that union, a separate recognition of the petitioner-union was required. Subsequently, by Ordinance No. 4 of 1994, the respondent-undertaking has been converted into a Public Limited Company, but the entire shares are held by the government of India. Thereupon, the petitioner filed an application to amend the writ petition to pursue the same against that Company.
3. The respondents filed a counter-affidavit stating that it is not open to any group of persons or even an union to claim that they should be recognised as there is no right for recognition. It was also stated that Section 18 of the Industrial Disputes Act provided that the settlement entered into with the union will be binding only on the members of the Union and therefore the petitioner-Union will not be affected by any settlement with the majority union and that the petitioner-Union had its own remedies by way of raising a dispute and have it settled by the Industrial Tribunal.
4. Thereupon, the petitioner-Union filed a reply affidavit pointing out that other than the majority union, there were seven other unions; one of such has only 22 members and when the respondent have recognised those unions, the refusal to recognise the petitioner-Union is discriminatory, particularly when one of those unions was not even registered as a Trade Union.
5. The respondents filed an additional counter-affidavit admitting that other associations have been recognised since they have represented the peculiar problems of the members of such associations, but as a matter of policy no fresh recognition has been granted since 1959. It is also stated that a reference has been made to the National Industrial Tribunal by the Central Government with regard to the dispute between the workmen and the management and as the petitioner-Union had itself impleaded therein it is free to raise further disputes before that Tribunal.
6. The learned counsel for the petitioner argued that registration of union was by itself ineffective unless it was recognised and the denial of such recognition was untenable and offended the provisions of the Constitution guaranteeing the freedom of association. It was also submitted that refusal to recognise the petitioner-Union while recognising the other unions even with less members is discriminatory. The last submission was that there was a legitimate expectation to be treated fairly and the refusal of the management to grant interview to the petitioner-Union is arbitrary and untenable. The learned Counsel for the respondents submitted that there was no right for the Trade Union to be recognised as it has been held by the Supreme Court in Delhi Police Non-Gazetted Karmachari Sangh v. U. I. , that such right is not a fundamental right and such a dispute cannot also be entertained in a suit as held by the High Court of Kerala in T. C. C. Thozhilali Union v. T. C. C. Ltd. 1983 (1) LLJ 425.
7. A preliminary objection was taken that the Respondent is only a Public Limited Company and it cannot be regarded as a State against which a writ could lie and in any event there was no statutory duty to recognise the union, the violation of which could be questioned in a writ. It was submitted that the matter of recognition of a minority union was delicate matter since it may disturb the industrial peace as the majority Union will be present it particularly when the allegation was that it did not properly represent the interests of the members who have left it and formed an minority Union. it was further submitted that in the circumstances, the matter of recognition of an union is purely discretionary matter and not amenable to any judicial review.
8. I have considered the submissions of both sides. The Trade Unions Act only regulates the incorporation and organisation of the Trade Union, its rights and liabilities. There is no provision in the Trade Unions Act itself relating to the recognition of the union by the management. The contention of the respondents is that the question of recognition is neither a fundamental right nor a statutory right. No doubt, the Supreme Court has held in A. I.E. B. Association v. N. I. Tribunal, , that a right to form unions does not carry with it a fundamental right in the union so formed to achieve every object for which it was formed. But it does not mean that it can be denied recognition altogether. The High Court of Calcutta in E. R. E. Congress v. General Manager, E. Railway, , noted the observations of the Supreme Court in M/s. Raghubar Dayal v. Union of India, , that there is no such fundamental right to obtain recognition from the Government, but also observed that proposition was limited to the circumstances of that case. Several cases which were brought to my notice referred only to statutory embargo on the formation of certain unions with reference to Government service and also military service, where the Courts held that it would be a reasonable restriction to derecognise the unions which do not conform to certain norms. The above Calcutta case in E. R. E. Congress v. General Manager, (supra) also was concerned with a restriction on the union as a condition precedent to the recognition and the withdrawal of the recognition, where the Court held an opportunity was required before the recognition was withdrawn. This case shows that apart from such considerations, recognition of union may entail constitutional importance where without such recognition the fundamental right to form an association would be illusory. After all an union is formed only for collective bargaining and if the union is denied even an opportunity to meet the management to discuss the matters, it amounts to denial of the association itself and in my opinion constitutes a denial of right to form an association. The Supreme Court had an occasion to consider this issue in the case of B. L. Workers' Union, Bombay v. B. L. & Co. Ltd. AIR 1985 SC 811, wherein it was held that the conferment of exclusive right on the recognised union to represent workmen denying the right to be represented by any individual is not unconstitutional. Though the Supreme Court observed that it is not correct to say that recognition by an employer is implicit in the fundamental freedom to form an association, it was said in the context of Bombay enactment which provided for even an unrecognised union, a right to meet and discuss the grievances of the individual workmen with the employer. There was, thus, statutory recognition of an unrecognised union which to my mind impelled the Supreme Court's observation that the formation of union does not carry with it the implied right to recognition. It must be remembered that in this case even the limited recognition viz., to represent its own members in case of their individual grievances was denied to the petitioner. In the words of Lord Denning in the case of Beetham v. Trinidad Cement Ltd. 1960 (1) ALL. E. L. Reports 274.
"Here is this union knocking at the door of the Company asking to be let in to negotiate; and the company time and time again refusing to open it, any more, keeping it locked and barred against the union".
9. What then is the remedy for the petitioner? The learned Counsel for the respondents argues that the petitioner may raise the dispute of recognition and get it referred to the Industrial Tribunal or even raise it before the National Tribunal; but in any event, the petitioner cannot approach this Court, because the respondent is neither a State nor its action a statutory obligation, which can enforce. I am unable to accept these objections because even though the respondent-undertaking has been converted to a Public Limited Company, it is even now wholly held by the Government of India and in my opinion, continues to fall within the meaning of 'State' under Article 12 of the Constitution of India. As regards the question of recognition, what the petitioner seeks is not a general recognition to negotiate as a majority union on behalf of all workmen but only a limited recognition to discuss the grievances of its own members who, according to it, form a separate category. With regard to this limited recognition, though it may be said that it is not a fundamental right or a statutory right or a statutory right, it cannot be denied, that fair play requires that such recognition should be conceded. As long as the respondent-undertaking continues to be an instrumentality of the State, there can be no unfettered discretion, since it has a duty to act fairly and to adopt the procedure which is fair-play in action as held by the Supreme Court in Food Corporation of India v. Kamdhenu Cattle Feed Industries, . As observed by the Supreme Court to satisfy this requirement of non-arbitrariness in a state action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or also that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. No doubt a mere reasonable or legitimate expectation may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the action arbitrary as it forms a necessary concomitant of the rule of law. Legitimate expectations in this context are capable of including expectations which go beyond enforceable legal rights provided they have some reasonable basis (See Attorney General of Hong Kong v. N. G. Yuen Shiv) 1983 (2) A. C. 629. The present case fits into that category because the arbitrary decision to close the door against this particular union even with regard to its claim for a limited recognition gives a tinge of an abuse of power and even raises a doubt about its bona fides. It is significant that the respondent-undertaking invokes the bogey of majority union and industrial unrest. It may be noted in this context that in 1947 Section 28(f) was introduced in the Trade Unions Act allowing recognised unions; the right to interview with the management. But it is stated that this Section has not been brought into force till now. It appears to me that time has come to accept the concept of limited recognition as part of the right to form the association. In fact even an unrecognised union has been given this limited recognition by the Maharashtra Recognition of Trade Unions and Prevention of Unfair Practices Act (1 of 1972). The arbitrary denial of such right violates the doctrine of legitimate expectation and I am of the considered option that it would also be discriminatory when the Management grants such a recognition to other unions while negotiating with the majority union.
10. The learned Counsel for the respondents pointed out that since private employers are also in the same situation, a writ should not be issued against the respondents for denying such limited recognition, when such a writ cannot be issued against the other private managements who deny such recognition. I am unable to accept this objection also, because the State is expected to adhere to the rule of law and State-undertakings are expected to be model employers. Since the writ jurisdiction applies only to the State and the State instrumentalities, obviously a writ can be issued only against them. Merely because the unions dealing with private management do not have recourse to the extraordinary writ jurisdiction, it cannot be said that the State-undertakings which fall within the jurisdictions could escape their responsibility.
11. Lastly it was argued that the petitioner should be referred to alternate remedies such as raising an industrial dispute or pursuing the matter before the National Tribunal, because recognition of a trade union is a policy matter and the Court should not interfere. No doubt, it is a matter of policy but this Court is concerned to see that whatever policy the respondent adopts is adopted after due and fair regard to all the conflicting interest. The power of the Court to intervene is not limited as once was thought only to quasi-judicial functions. Modern cases show that this Court will intervene more widely than in the past. See : Reg v. Liverpool Corporation, 1972 (2) Q. B. 299. Our Supreme Court has also frowned upon public institutions raising the plea of alternate remedy when the action complained of is obviously unfair. See; Hyderabad Commercials v. Indian Bank, . I am unable to understand why the respondent should resist this petition, for after all good management involves a willingness to listen to the grievances of the employees and to sort out the differences at the earliest opportunity for lasting industrial peace.
12. In the circumstances, I direct the respondents to afford an opportunity to the petitioner-union to represent its own members and discuss their grievances.
13. The writ petition is accordingly allowed. No costs.