Kerala High Court
Kerala State Financial Enterprises ... vs Registrar Of Trade Unions on 18 November, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939
W.P(C).No.39145 of 2016 (P)
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PETITIONER(S):-
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1. KERALA STATE FINANCIAL ENTERPRISES OFFICERS ASSOCIATION
(WIDELY KNOWN AS KSFE OFFICERS' ASSOCIATION OR KSFEOA),
REPRESENTED BY ITS GENERAL SECRETARY,
M.S.CHADRA BOSE, KSFE OFFICERS' ASSOCIATION,
THIRUVANANTHAPURAM 695 001.
RES. ADDRESS:-
M.S.CHADRA BOSE, S/O.SIVARAMAN P.K.,
ANUSREE, ARYAD NORTH PO, ALAPPUZHA DISTRICT.
2. M.S.CHANDRA BOSE, GENERAL SECRETARY,
KERALA STATE FINANCIAL ENTERPRISES OFFICERS ASSOCIATION,
(WIDELY KNOWN AS KSFE OFFICERS' ASSOCIATION OR KSFEOA)
KSFE OFFICERS' ASSOCIATION,
THIRUVANANTHAPURAM 695 001.
BY ADVS.SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
KUM.A.ARUNA
RESPONDENT(S):-
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1. REGISTRAR OF TRADE UNIONS,
LABOUR OFFICE, PATTOOR PMG RD,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM - 695 033.
2. DEPUTY REGISTRAR OF TRADE UNIONS,
DISTRICT LABOUR OFFICER, THIRUVANANTHAPURAM - 695 033.
3. ADDITIONAL REGISTRAR OF TRADE UNIONS,
THIRUVANANTHAPURAM - 695 033.
4. THE ASSISTANT LABOUR OFFICER,
III CIRCLE, THIRUVANANTHAPURAM - 695 001.
5. DISTRICT LABOUR OFFICER,
THOZHIL BHAVAN, VIKAS BHAVAN P.O.,
THIRUVNANTHAPURAM - 695 001.
W.P(C).No.39145 of 2016 (P) - 2 -
6. KSFE OFFICERS' ASSOCIATION,
REPRESENTED BY ITS SECRETARY,
TC NO.12/670 (1), NEAR VARAMBASSERY KOVIL,
VIKAS BHAVAN(P.),
THIRUVANANTHAPURAM - 695 033.
7. SURAJ.P.S,
MANAGER, KSFE LTD., ALACODE BRANCH, MALABAR COMPLEX,
2ND FLOOR, NEW BAZAR, ALACODE, KANNUR - 670 571.
8. K.UMMER
MANAGER, KSFE LTD., CHEMTHERI BRANCH,
FIRST FLOOR, MUKKUZHI COMPLEX,
HOSPITAL ROAD, CENTHERI P.O., KANNUR - 670 632.
9. THE KERALA STATE FINANCIAL ENTERPRISES,
REPRESENTED BY ITS MANAGING DIRECTOR,
HEAD OFFICE, "BHADRATHA", THRISSSUR - 680 020.
R1 TO R5 BY GOVERNMENT PLEADER SRI.B.VINOD.
R6 TO R8 BY ADVS.SRI.T.A.SHAJI (SR.)
SMT.NAMITHA JYOTHISH
SRI.ATHUL SHAJI
R9 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-09-2017, THE COURT ON 17-10-2017 DELIVERED THE FOLLOWING:
W.P(C).No.39145 of 2016 (P)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P1 TRUE COPY OF THE REPLY DATED 18.11.2015.
EXT.P2 TRUE COPY OF THE OFFICE ORDER DATED 1.2.1986.
EXT.P3 TRUE COPY OF THE 'CONSENSUS REACHED BETWEEN THE MANAGEMENT
AND THE REPRESENTATIVES OF THE ASSOCIATION OF OFFICERS IN
THE COMPANY REGARDING REVISION OF PAY AND ALLOWANCES ON
DIFFERENT DATES AND CONCLUDED ON 29TH DECEMBER, 2015.
EXT.P4 TRUE COPY OF THE CERTIFICATE DATED 21.1.2016.
EXT.P5 TRUE COPY OF THE APPLICATION SIGNED BY THE 7TH RESPONDENT
AND 8TH RESPONDENT AND SUBMITTED BEFORE THE 1ST RESPONDENT
TOGETHER WITH THE CONSTITUTION, MINUTES AND MEMBERSHIP
REGISTER.
EXT.P6 TRUE COPY OF THE COMPLAINT DATED 4.11.2015.
EXT.P7 TRUE COPY OF THE COMPLAINT DATED 6.11.2015.
EXT.P8 TRUE COPY OF THE COMPLAINT DATED 24.11.2015.
EXT.P9 TRUE COPY OF THE LETTER DATED 18.12.2015.
EXT.P10 TRUE COPY OF THE ADDITIONAL OBJECTION FILED BY THE
PETITIONER ON 28.7.2016.
EXT.P11 TRUE COPY OF THE CERTIFICATE DATED 26.1.2016
ISSUED BY THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).No.39145 of 2016-P
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Dated this the 17th day of October, 2017
JUDGMENT
Two associations of officers of the 9th respondent claim the same name, which controversy has given rise to the writ petition. The 1st petitioner and the 6th respondent, both assert their claim to the name: "KSFE Officers' Association or KSFEOA", and put forth their registrations; under two different enactments. The petitioners impugn Exhibit P11 registration granted under the Trade Unions Act, 1926 [for brevity "Trade Unions Act"] to the 6th respondent. The petitioners contend that it is by employing a subterfuge and without reckoning the registration already obtained by the 1st petitioner under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 [for brevity "Travancore Societies Registration Act"] that the aforesaid registration has been granted.
2. The learned Counsel for the petitioner relies on Exhibits P1, P2 and P3 to contend that before either of such registrations were applied for, the Association existed. The 1st WP(C) No.39145 of 2016 - 2 - petitioner obtained Exhibit P4 registration under the Travancore Societies Registration Act on 21.01.2016. The 6th respondent filed Exhibit P5 application under the Trade Unions Act seeking registration of the Union; which even as per the application, came into existence only on 09.08.2015. The Registrar under the Trade Unions Act, without considering the objections of the petitioner, filed at Exhibits P7 to P9 and the fact that even signatories to the original application has resiled, granted registration at Exhibit P11.
3. Arguments raised by the learned Counsel for the petitioner are many fold. To the specific query as to whether the parties should be relegated to the Civil Court, since obviously a split amongst the members has led to the present controversy; the petitioners rely on the decision of the Hon'ble Supreme Court in D'Souza R.G. v. Poona Employees Union and Another [2015 (2) SCC 526]. The Hon'ble Supreme Court, according to the petitioners, had specifically laid down that only a writ or an appeal would lie against the registration as such.
4. Arguments were also addressed based on sub-section (2) of Section 7 of the Trade Unions Act, that there is a clear WP(C) No.39145 of 2016 - 3 - deception possible for reason of there being two Associations with the same name; one of which was registered prior to the other. The Registrar was obliged to consider the possibility of such a deception of the public; which aspect was never gone into. In the present case, the Registrar merely went ahead with the registration and issuance of certificate despite the objections filed, which is against the binding precedent as reported in Lissie Asupathri Thozhilali Union and Ors. v. Dy.Registrar of Trade Unions [2004 KHC 1053]. The fact that signatories in the application had specifically stated that they had not affixed the signatures, would give rise to an allegation of fraud which vitiates all solemn acts. The petitioners also have a contention that there could not have been any registration under the Trade Unions Act of the Officers, since they are, by their service rules, prohibited from engaging in any trade union activities. It is asserted that the opinion of the Registrar regarding deception of the public is a standalone provision, which had to be considered independently. An Association of the same name registered under another enactment could result in such deception being employed; is the compelling argument.
WP(C) No.39145 of 2016 - 4 -
5. The learned Senior Counsel for the respondents, however, would contend that "workmen", going by the definition of "trade dispute" means all persons employed in a trade or industry and there cannot be any restriction of management personnel from constituting themselves into a Trade Union. It is pointed out that the registration under the Travancore Societies Registration Act, which prescribes only a summary procedure, has been initiated after the registration under the Trade Unions Act was made. Section 14 of the Trade Unions Act specifically exempts application of certain Acts, inter alia of the Societies Registration Act, 1860, to registered Trade Unions; which registration under the other enactments would be rendered void.
6. A split at the helm of affairs and possibly in the rank and file has resulted in the aforesaid attempts to obtain registration under two separate enactments. As was argued, the Association was existing even prior to the registration. The registration under the Travancore Societies Registration Act was made on 21.01.2016, as seen from Exhibit P4. The application under the Trade Unions Act was made by Exhibit P5 on 09.09.2015. It was when Exhibit P5 WP(C) No.39145 of 2016 - 5 - application under the Trade Unions Act was pending that the registration under the Travancore Societies Registration Act was made. The objections also indicate a split between the members of the Association, which did not impress the Registrar under the Trade Unions Act, who registered the 6th respondent by issuance of Exhibit P11 Certificate of Registration.
7. D'Souza R.G. was a case in which a cancellation was attempted of the registration already made, which, on the facts of the aforesaid case, was not an available remedy; in which context, the Hon'ble Supreme Court declared that the petitioner therein could have either approached the appellate remedy or the writ Court. Going by the declaration made definitely an application for cancellation would not lie; on the facts disclosed herein. The prayer made against the registration is on the ground of a mistake committed by the Registrar; which could only be challenged in appeal. Here, the petitioner has not approached the appellate remedy. There would also be no bar in the party affected approaching a Civil Court and then the registration would be subject to that. Entertaining a writ proceeding essentially is a discretionary WP(C) No.39145 of 2016 - 6 - exercise especially in the context of existence of an alternate remedy.
8. Lissie Asupathri Thozhilali Union was a case in which certain persons sought for registration and the Registrar conducted an enquiry as to whether they were actually employees of the management - Lissie Hospital, through the Assistant Labour Officer. Having found that none of the members of the Union were the employees of the management, in an appeal it was contended by the Union that such an enquiry was not contemplated. This Court held that an enquiry as carried out cannot be said to be prohibited and there is no mandate that when an application is made it should be allowed mechanically. The said proposition would not apply on the facts of this case, where admittedly the members of both the Associations are employees of the respondent-KSFE.
9. The Trade Unions Act, as is evidenced from its Objects and Reasons, as originally introduced in 1924 was enacted to provide adequate safeguards for the rights of its members and to ensure their protection in certain cases; in respect both of civil and criminal liability. It was also intended to give effect to the provisions WP(C) No.39145 of 2016 - 7 - of the various welfare legislation which permitted representation of workmen, by office bearers of the Trade Unions, before the adjudicatory authorities, Tribunals and Courts. There was no restriction placed on the objects; a registered Trade Union may pursue and hence a registration alone cannot result in an allegation of violation of service rules; if at all available. There is nothing produced to show that the officers of the 9th respondents are prohibited from engaging in trade union activities. Further the prohibition with respect to a trade union activity, would have to be looked at on facts with respect to the activity involved in and a mere registration as a Trade Union or membership being obtained in such registered Union comprised only of managerial staff cannot lead to assumption of service rules having been violated.
10. Though there is no separate definition for "workmen", the definition of "trade dispute" defines "workmen" to be all persons employed in trade or industry, whether or not in the employment of the employer with whom the trade dispute arises. The said definition furthers the cause of the workmen for representation before an adjudicatory forum. The meaning assigned to "workmen" in the WP(C) No.39145 of 2016 - 8 - definition of "trade dispute" ensures that an office bearer of an Association of workers engaged in a particular trade or industry could also be allowed to represent the workmen, even if the Association is not one specifically of the employees of the particular employer. The prohibition pointed out in Section 14 of the Trade Unions Act also does not affect the registration under the Travancore Societies Registration Act.
11. The contention urged by the petitioner based on sub-section (2) of Section 7 of the Trade Unions Act is with respect to the resemblance in a name occasioning deception of the public or the members of the two Associations. The argument is based on the registration obtained under the Travancore Societies Registration Act. Though the learned Senior Counsel appearing for respondents 6 to 8 had raised a contention on the basis of Section 14 of the Trade Unions Act, the Travancore Societies Registration Act is not one which is specifically exempted from application insofar as the Trade Unions registered under the Trade Unions Act are concerned. But for the specific enactments referred therein the exclusion does not apply. Further, the registration under a different enactment cannot be WP(C) No.39145 of 2016 - 9 - looked into by the Registrar under the Trade Unions Act. The situation contemplated under sub-section (2) of Section 7 arises only when an application for registration of a Trade Union is to be considered; where the name of such Trade Union resembles that of another Trade Union registered under the Trade Unions Act itself; which would result in the public or the members itself being deceived. This again is in the context of the majority union of workmen, being recognised by the Management and having a prerogative for being called for conciliation, settlements and the like; which has a statutory recognition in so far as workmen under the Industrial Disputes Act are concerned. The Officers-association too can be consulted in redress of their grievances with respect to their employment and in regulation of their service conditions; but it has no statutory flavour and the registration under the Trade Unions Act confers no better status.
12. The registration under the Trade Unions Act, in the instant case, would not give the members or office bearers of the Association of Officers any immunity as conferred by the registration of a trade union of workmen as defined under the WP(C) No.39145 of 2016 - 10 - Industrial Disputes Act. There is also no obligation on the Management to recognize an Officers-association registered under the Trade Unions Act. The registration does not confer any legal status vis-a-vis the employer, since the association is of managerial personnel. Similar is the case with the registration under the Travancore Societies Act. Both the factions have attempted to legalize their separate existence by way of registration under different enactments; which, but for the same name employed, has no consequence in deciding their independent status.
13. Obviously the controversy arose, as was stated, due to a split within the existing Association. The perpetrators of such split at the helm of affairs attempted registration under the two enactments which has caused the aforesaid stalemate; one is registered under the Travancore Societies Registration Act and the other under the Trade Unions Act. This Court contemplated an ascertainment of the entity which has the majority; which could be determined by a referendum of the members. The learned Counsel appearing for the petitioners objected to the same relying on (1990) 2 SCC 444 [Automobile Products of India Employees' Union v. WP(C) No.39145 of 2016 - 11 - Association of Engineering Workers, Bombay and Others] and that of a Full Bench of the High Court of Bombay, reported in (2007) 11 LLJ 217 Bom. [Air India Employees Guild v. Air India Ltd. And Ors].
14. Automobile Products of India Employees' Union dealt with the controversy raised by two rival unions claiming majority membership of the workman; both vying for registration under the Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1972 (Maharashtra) [hereinafter referred to as "the Maharashtra Act"]. The Supreme Court held that the recognition or de-recognition of an Union, as that representing the Workmen of an industrial concern, cannot be considered in isolation, resorting to the majority factor alone, especially when a recognised Union is entitled to be continued for a specific duration; in the Maharashtra Act, for a period of 2 years. Recognition was also, under the said enactment, on proof of membership of minimum of 30% of the employees, for a minimum period of, the whole of six calendar months, preceding the application for recognition. Hence it could not have depended upon a referendum as carried out by the Industrial Court for the purpose of WP(C) No.39145 of 2016 - 12 - deciding who among the rival unions could be recognised. The decision on facts and law does not apply here.
15. Air India Ltd; was also a case in which verification of membership by secret ballot on a particular day was found to be derogatory to the Code of Discipline especially when recognition depended upon verification of membership for a particular period as per the Code of Discipline. Here, there is no question of recognition under any statute raised and the claim is only to the name of an Association which existed without any registration and on differences surfacing, have now split into two; both claiming the same name.
16. In the present case there is no bye-law produced of the Association said to have been existing nor is there a rule or regulation of the particular employer or for the industry; governing the matter. There is no mandate for a statutorily recognised Association to be in existence as provided under a labour welfare legislation. A loosely formed group of officers; aimed at the welfare of its members and redress of their grievances relating to employment; over the years acquired a certain stature amongst the Officers. Due to leader ship struggles; the present crisis arose. This does not really WP(C) No.39145 of 2016 - 13 - further the interest of the members since divisions denude whatever bargaining power is available to that group of officers.
17. On a specific query made by this Court, the learned Standing Counsel appearing for the Management, submitted on instructions, that a referendum would be impossible for reason of the association being of Officers themselves. There are no personnel available who could carry out the referendum. The learned Senior Counsel appearing for the respondents also would maintain that there are other Associations of Officers and there can be no referendum carried out of all the Officers of the respondent KSFE who also belong to the other associations. Referendum hence being not a viable option and the parties too being averse to that, this Court cannot but relegate the parties to the Civil Court.
18. The Association which earlier existed was not a legal entity and was one loosely formed. Neither of the parties have produced anything to show their independent existence prior to the controversy. Under the Travancore Societies Act and the Trade Unions Act they can pursue their respective objects, if they have any, having no relevance to their employment and vis-a-vis their WP(C) No.39145 of 2016 - 14 - employment, the terms governing it or the grievances arising therefrom. The employer is also under no legal obligation to recognise either of them. Hence there is nothing to persuade this Court to invoke its extraordinary jurisdiction. Factional disputes are to be settled before a Civil Court and not this Court under Article 226 of the Constitution.
The writ petition is dismissed with the parties left to suffer their costs and their remedy before a Civil Court.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]