Madras High Court
The United India Insurance Officers' ... vs The Chairman Cum Managing Director on 17 November, 2009
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.11.2009 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.Nos.16025 and 16310 to 16312 of 2009 and M.P.Nos.1 and 2 of 2009 1. The United India Insurance Officers' Association, Rep. by its General Secretary, Mr.s.Vasudevan Iyengar. ..Petitioner in WP.No.16025 of 2009 2. National Insurance Co. Officers Association, Rep. by its Regional President, Dr.M.Desh Kumar ..Petitioner in WP.No.16310 of 2009 3. The New India Assurance Officers' Association, Rep. by its All India President T.S.Par Oli, s/o.T.G.Santhanakrishnan, No.770, Anna Salai, III Floor, Chennai 600 002. ..Petitioner in WP.No.16311 of 2009 4. The Oriental Insurance Co. Officers' Association, Rep. by its Regional Secretary S.Mahendran, S/o.R.Selvam, Divisional Office, The Oriental Insurance Co., Ltd., 173, J.N. Road, Thiruvallur-602 001. ..Petitioner in WP.No.16312 of 2009 Vs. 1. The Chairman cum Managing Director, The United India Insurance Co. Limited, 24, Whites Road, Chennai 600 014. ... Respondent in W.P.No.16025 of 2009 2. The Chairman cum Managing Director, The National Insurance Co. Ltd., 3, Middleton St.,P.O.Box.No.9229 Kolkatt-700 071. ..Respondent in WP.No.16310 of 2009 3. The Chairman cum Managing Director, The New India Assurance Co. Ltd., New India Assurance Building, 87, M.G.Road,Fort, Mumbai-400 001. ..Respondent in WP.No.16311 of 2009 4. The Chairman cum Managing Director, The Oriental Insurance Co. Ltd., A-25/27, Asif Ali Road, Head Office, New Delhi. ..Respondent in WP.No.16312 of 2009 Prayer in WP.16025 of 2009 : Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the respondent from insisting clause 2.2 and 2.3 of the terms and conditions given as Annexure A to "Check off Exercise 2009" and from declining to deduct the subscription of the members of the petitioner association from the salary and remit the same to the petitioner association as it has been done from the year 2004 onwards, while proceeding with the "Check off Exercise 2009" as per the respondent's Notice in HO: PER:2516 of 2009, dated 31.07.2009. Prayer in WP.16310 of 2009 : Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the respondent from insisting clause 2.2 and 2.3 of the terms and conditions given as Annexure A to "Check off Exercise 2009" and from declining to deduct the subscription of the members of the petitioner association from the salary and remit the same to the petitioner association as it has been done from the year 2004 onwards, while proceeding with the "Check off Exercise 2009" as per the respondent's Notice in HO: PERS: CHECK OFF 2009 dated 31.07.2009. Prayer in WP.16311 of 2009 : Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the respondent from insisting clause 2.2 and 2.3 of the terms and conditions given as Annexure A to "Check off Exercise 2009" and from declining to deduct the subscription of the members of the petitioner association from the salary and remit the same to the petitioner association as it has been done from the year 2004 onwards, while proceeding with the "Check off Exercise 2009" as per the respondent's Notice in HO: Corp : HRM.GA.SNN-2009 dated 31.07.2009. Prayer in WP.16312 of 2009 : Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the respondent from insisting clause 2.2 and 2.3 of the terms and conditions given as Annexure A to "Check off Exercise 2009" and from declining to deduct the subscription of the members of the petitioner association from the salary and remit the same to the petitioner association as it has been done from the year 2004 onwards, while proceeding with the "Check off Exercise 2009" as per the respondent's Notice in HO: PERSONAL (IR Cell) : dated 31.07.2009. For Petitioner(s) : Mr.T.V.Ramanujam, SC for Mr.T.V.Krishnamachari For Respondent(s) : Mr.A.L.Somayaji, SC for Mr.V.Perumal COMMON ORDER
These writ petitions have been filed by four different Insurance Companies Officers' Association seeking a writ of mandamus forbearing the respondents from insisting Clause 2.2 and 2.3 of the Terms and Conditions given as Annexure A to ' Check off Exercise 2009' and also from declining to deduct the subscription of the members of the respective petitioner association from the salary and remit the same into the account of the respective petitioner association as it has been done from the year 2004 onwards while proceeding with the 'Check off Exercise 2009'.
2. Since the issue involved in all the writ petition is one and the same, they are disposed of by means of this common order.
3. The common averments in all the writ petitions are as follows:
(i) The respective associations are registered under the trade Unions Act, 1926 and governed by their own rules and bye-laws. The employees working in the respective insurance companies are the members of the respective associations. In an effort to discourage mushroom growth of unions without any reasonable strength, the need for implementing the 'check off system' was stressed. Therefore, the National Confederation of General Insurance officer's Association, which is the parent body of all the four non-life public sector insurance companies filed W.P.No.6580 of 1999 seeking a writ of mandamus to introduce the check off system. This Court, while disposing of the writ petition on 29.08.2003, directed the management of all the four non-life public sector insurance companies, the respondents herein to implement the check off system within a period of six months from the date of the order. Thereafter, the respective respondent companies implemented the check off system in the year 2004 only for a period of two years. Again, it was implemented for a further period of two years. While the things stood so, the respective respondent companies issued the impugned notices introducing Clauses 2.2 and 2.3 to the Terms and Conditions for Check-Off Exercise 2009 which are the subject matter in these writ petitions.
(ii) The impugned terms and conditions introduced in Annexure A to the Check-Off Exercise-2000 are extracted hereunder for easy reference:
2.2 It shall be condition precedent that the Union/Associations representing Class I Officers including Associations representing SC/ST Officers shall have its members enrolled from Officers up to and including Scale IV cadre only. Officers of Scale V and above will strictly not qualify for Membership of the Union / Association representing Class I Officer.
2.3 It shall be a condition precedent that Union / Association representing Class I Officers including Associations representing SC/ST Officers shall neither allow nor appoint any Officer-in-charge of any Operating Unit/Office (BO/DO/Extension Counter) to hold office bearer-ship of any level in the Union/Association so long as they are functioning as Officer-in-charge of Operating Unit/Office of the Company. However, such Officers-in-charge may be allowed to be enrolled as Ordinary Members of the Union / Association / Welfare Association.
4. The crux of the grievance of the petitioner in all the four writ petitions is that the introduction of terms and conditions under Clauses 2.2 and 2.3 in Annexure-A to Check-Off Exercise-2009 by the respective respondents directly affects the fundamental rights of the Trade Unions and its members, more specifically, the so called terms and conditions restrict the members of officers of scale V level and excluding the officers in charge of the Branch Office and Divisional Office from becoming officer bearer, in any union/Association thereby violating Fundamental rights guaranteed under Article 19(1)(c) of the Constitution of India.
5. The learned senior counsel appearing for the respective associations would submit that the right to form an association is a fundamental right and the same cannot be taken way by an administrative order by saying that the officers falling in Scale V cannot be allowed to become the representative or office bearers in any union or Association. He would further submit that the impugned terms and condition to Annexure-A to the Check-Off Exercise-2009 is an attempt to inroad the fundamental rights guaranteed by Article 19(1)(c) of the Constitution of India.
6. He further added that the introduction of the impugned terms and conditions will not be within the jurisdiction of the respective Insurance Companies which are registered under the Companies Act to decide who should be the member of the respective association. Since the very question as to who should be the member of the respective association has to be decided by the bye-laws of the respective association and when the bye-laws have already been registered under the Trade Unions Act, the impugned terms and conditions not only run counter to the bye-laws and rules of the respective registered trade unions, but also without jurisdiction and oppose to all cannons of fair play. The respective respondent companies by way of bringing the impugned terms and conditions has decided to divide the well-organised trade unions and rule them on their own way which is totally opposed to a democratic norms and fair play. On that basis, he urged this Court to allow the writ petitions.
7. In support of his submissions, the learned senior counsel appearing for the respective respondent companies relied on a judgement in Ram Bahadur Rai v. The State of Bihar and others (1975) 3 SCC 710, wherein the Hon'ble Supreme Court has held that the formation of an Association for the ventilation of grievances in a lawful manner is a part of the constitutional right of free speech and expression, the right to assemble peacefully but without arms and the right to form associations guaranteed by Article 19(1)(a), (b) and (c) of the Constitution. They are important and valuable rights guaranteed by the Constitution which cannot easily be taken way.
8. He relied on another judgement in Assam Oil Company Limited, New Delhi v. Its Workmen AIR 1960 SC 1264, the learned senior counsel appearing for the petitioner has brought to my notice that it would not be open to an employer to dismiss his employee solely or principally for the reason that he or she had joined a trade union. That is a fundamental right guaranteed to every citizen in this country and it would be idle for anybody to contend that the mere exercise of the said right would incur dismissal from service in private employment. The dismissal of a workman on that ground would therefore be not justified.
9. He relied on yet another judgement in Bokajan Cement Corporation Employees' Union v. Cement Corporation of India Limited (2004) 1 SCC 142 wherein it has been held by the Hon'ble Supreme Court that the membership of a trade union is a valuable right which can be taken away only within the clear parameters of the Act and the Constitution of the trade union.
10. In reply , the learned senior counsel appearing for the respondent has contended as follows:
(i) Firstly, the respective Associations have no legal right to seek a writ of mandamus forbearing the respective respondent companies from streamlining its administration inasmuch as the respective respondents before bringing in the so called terms and conditions in Annexure -A to Check-Off Exercise -2009, the matter was elaborately discussed with all members of the respective associations. When this Court has directed to implement the check off system, even at the very first instance in the year 2004, the respective Management before introducing the check off system has made it very clear in writing that the check off system would be introduced at the discretion of the respective respondents. This was accepted by the members of the respective associations even in the year 2003. Again, on 09.04.2009 a notice was issued to all the members respective associations. Even before finalising the impugned terms and conditions , the respective respondents have taken all care to collect the view and comments from the members of all the associations. Even now, except the four Associations who are before this Court, the seven other major union have agreed for the introduction of the impugned terms and conditions and they have not challenged the same therefore, the grievance of the petitioners that they would not be allowed to become member of any union or Association cannot be legally entertained in these writ petitions.
(ii) Secondly, the respective respondents have no objection for any officer falling under Scale V to become a member in any of the union / Association for the purpose of ventilating their grievance, but the only objection is that as per the impugned terms and conditions, they cannot be a member or representative or office bearer of any union or association and any such representation in the capacity as officer-bearer of any union or Association will not be recognised by the respondent.
(iii) Thirdly, if the officers falling in Scale V forms an association with other officers falling in Scale V, VI and VII, the respective respondent companies have no objection and they can very well form an independent association or union and in such case, their representation will also be considered by the respective respondents. While so, according to the learned counsel appearing for the respective respondents, the arguments advanced by the learned senior counsel appearing for the petitioner that the fundamental rights of such officers guaranteed under Article 19(1)(c) of the Constitution has no substance at all.
(iv) Fourthly, since the officers falling in Scale V are posted either as Regional Managers or Chief Regional managers the Branch Officers and Divisional Officers are brought under the supervisory and managerial control of Scale V Officers at Regional Offices. Further the officers falling in Scale V have certain administrative powers such as transfer of employees from one place to other place within the state and deciding the promotional avenues of the employees alongwith serving as authorities for redressal of grievances entrusted to them by Head Office. That apart, Scale V Officers are managing around 600 employees under them controlling an insurance premium of around Rs.150 crores. They are wholly responsible for proper management of the Divisional and Branch offices and further when the officers falling in Scale V are posted at Head Office, they are in charge of full fledged corporate Departments controlling all India operations. On considering the higher positions, there wil be conflict of interest if officers of Scale V and above are allowed to become members or office bearers of the union and also hold the post of officers in charge of the Regional offices. Therefore, the respective respondent companies have decided not to permit them to clash with their exercise of power in their offices.
11. In this context, the embarrassing respondents insurance companies in order to avoid such embarrassing situation and conflict of interest in the duties of such officers, have decided that they can be allowed to be either the officers of Scale V and above and discharge their duties assigned to them or they can become the member of the union / Association. They cannot simultaneously allowed to discharge the duties of the Scale V officers and above and to be continued to be office bearers of an Association representing class V and above officers.
12. Lastly, when there is no statutory obligation cast upon the respondents to deduct the subscription from the salary of the employees of the respective respondent companies, the respective Association cannot take out a writ petition to impose any statutory obligation, which is not a legal or statutory duty of the respondents.
13. Therefore, the learned senior counsel appearing for the respective respondents has justified the impugned terms and conditions and prayed for dismissal of the writ petitions.
14. I have considered the rival submissions and I have also perused the records.
15. No doubt, Check-Off Exercise has been introduced by the respective respondents only pursuant to the direction of this Court in the year 2004. The said exercise has been satisfactorily continued till 2008. However, since the respective respondents have gained experience during the past 5 years of existence of check off system, they proposed to further reform the system with a view to lend greater credibility to it and also serve the purpose, for which it was initially introduced. Therefore, they decided to introduce the impugned terms and conditions in Annexure-A of Check-Off Exercise-2009 While doing so, having seen that the officers belonging to Scale V are deciding the orders of transfer of employees and also redressing the grievances of certain classes of employees working in the respondent companies, the respective respondents have decided that they should not become the members of any association , in which the employees of the respective insurance companies are admitted as members. At the same time, the learned senior counsel appearing for the respondents has made an explicit statement that the officers of Scale V , VI and VII can, for the purpose of redressing their grievances and safeguarding their interests, form an individual association of their level and in that case, their representation, if they constitute minimum 30% of the representative strength, their union or Association would also be recognised. While so, the petitioners cannot be allowed to say that they are prevented from forming an association.
16. In view of the above submissions made by the learned senior counsel appearing for the respondents, the petitioners' apprehension that they are prevented from becoming a member in any of the association does not find any substance at all. Therefore, the impugned terms and conditions to Annexure-A of Check-Off Exercise-2009 cannot be held unreasonable and arbitrary. Since the respondents have made it clear that the petitioners are free to make their own bye-laws and the respondents have no intention to interfere with the so called internal affairs of the respective associations, this court does not find any substance to hold that the impugned terms and conditions in para 2.2 and 2.3 of Annexure-A to the Terms and Conditions for Check-Off Exercise 2009 are violating the fundamental rights. The logic of the respondents that the officers in Scale V cannot hold dual post of representing the company as officer in-charge of operating union and simultaneously functioning as office bearers of the association will lead to conflict of interest and further the same would lead to very serious breakdown of the administrative set up appears to be acceptable, therefore, the impugned terms and conditions cannot be found fault with.
17. Insofar as the relief regarding the deduction of subscriptions from the salary of employees working in the respective respondent companies and remitting the same into the account of the respective petitioner associations is concerned, it is found unequivocally clear that there is no statutory obligation cast upon the respondents, to deduct the monthly subscription from the salary of the employees of respondents, who are members of the respective associations and remit the same into the account of the respective associations. When the petitioners failed to show that the respondents are legally obliged to do so, this court cannot compel the respondents to do any such non statutory or non legal obligatory duties. However, it was brought to the notice that the respondents have hitherto deducted so , but dispensed with the system recently and the same has in fact been accepted by the seven other major unions. It is only the petitioners who are complaining of the same without any basis. Therefore, this Court is of the view that when out of 11 union when 7 other major unions have already accepted the policy of the respondents and not challenged their action in not deducting the subscription due to the respective associations from the employees , who are the members of the respective associations, the petitioners without having any legal basis cannot seek any relief.
18. In view of the foregoing discussions, the writ petitions fail and the same are accordingly dismissed. No costs. Consequently, connected MPs are closed.
Index : yes / no 17..11..2009 Internet : yes / no T.RAJA.J., kmk Pre Delivery Common Order in Writ Petition Nos.16025, 16310 to 16312 of 2009 17..11..2009