Madras High Court
Workmen Of Indian Bank Rep. By ... vs Indian on 21 July, 1994
Equivalent citations: (1994)IILLJ497MAD
ORDER Mishra, J.
1. The Secretary General, Federation of Indian Bank Employees Union, representing the workmen of the Bank, has preferred this petition under Article 226 of the Constitution of India for a writ in the nature of certiorari to quash the alleged directions as contained in a letter No. STAFF : IRC : KTV 84 dated August 21, 1984 (filed and marked as Exhibit 'A') and a consequential writ in the nature of mandamus not to unilaterally give effect to the notice dated November 2, 1982 issued under Section 9A of the Industrial Disputes Act. (hereinafter referred to as the Act).
2. The respondent is one of the Banks which were nationalised on July 19, 1969 by Central Act 5 of 1970. On August 18, 1973, the Board of Directors of the respondent Bank passed a resolution stating that the Federation of the Indian Bank Employees Union and the constituent Unions be granted recognition and further (a) 2 office-bearers of the Federation of the Indian Bank Employees Union be released from official work for Union work on all working days; (b) 2 office bearers of the Indian Bank Employees Union, Madras, on all working days for the Union work : and (c) one office-bearer each in the following six affiliate unions be released from 2 P.M. from Monday to Friday of each week viz., Indian Bank Employees Union, Andhra Pradesh, Kerala Mysore, Bombay, New Delhi and West Bengal States. This according to the petitioner, was known as 'duty relief. On July 29, 1973, it is alleged, the Management signed a settlement with the petitioner Federation and the affiliate Unions and both parties agreed to abide by the Code of discipline, one of the conditions in the Code of Discipline was that both the Management and the Labour will not resort to any unilateral action and disputes settled at the appropriate level and that they would settle all future differences, disputes and grievances by mutual negotiations, conciliation and voluntary arbitration. The respective office-bearers of the Federation and the Units enjoyed the duty relief, as above until it is said, on September 24, 1976, the Management issued a letter to withdraw the duty relief with effect from October 1, 1976. The petitioner Federation protested against the same and when they did not get any reply from the Management filed W. P. No. 4438 of 1976 for quashing the order of the Management dated September 24, 1976. However, according to the petitioner, during the tendency of the said writ petition, the Management came to a settlement with the Federation and agreed to restore the duty relief. On the basis of the said understanding, it is alleged, the petitioner withdrew the said writ petition on December 14, 1977 and wrote a letter to the Management on January 2, 1978 requesting it to grant duty relief to the respective office-bearers of the Federation. The Management granted the same, vide their letter dated January 12, 1978. Suddenly, however, by its notice dated November 2, 1982, purported to be under Section 9A of the Industrial disputes Act, the respondent proposed to withdraw the duty relief with effect from December 1, 1982. The Federation and the Units, it is said in the petition, naturally got agitated' and issued a strike notice on November 21, 1982 proposing to go on strike from December 8, 1982 On November 30, 1982, the Regional Labour Commissioner (Central), the conciliation officer, issued notice to both parties, that is, the federation and the Management. Efforts of conciliation, however, failed and the Regional Labour commissioner submitted his failure report on March 28, 1983. The Government, vide its letter dated June 21, 1983, informed the petitioner as well as the respondent that the conciliation report had been received by it on May 31, 1983. According to the petitioner, although the Government was obliged to make a reference to the dispute for adjudication to the Labour Tribunal, but the Government decided not to refer the dispute for adjudication. Following the same, the Management has issued an order on August 21, 1984 and withdrew the duty relief. Hence, the instant petition.
3. Mr. Prasad, learned Counsel for the petitioner, has relied upon Section 9A to contend that any proceeding for the reconciliation and the report of the Regional Labour Commissioner to the Government and the Management's action under the impugned notice to withdraw the duty relief, is a change in the conditions of service of the workmen and since the above condition has emerged pursuant to a settlement arrived at between the workmen represented by the petitioner on the one hand, and the Management of the respondent of the other hand, the only way to resolve it for the Government was/is to refer the dispute for adjudication, as provided under Section 10 of the Act. According to Mr. Prasad, the respondent/Bank being a State under Article 12 of the Constitution could not act arbitrarily and decide to withdraw a privilege extended to the office-bearers of the petitioner-Federation and the trade unions affiliated to it, without following the procedure prescribed in this behalf and without calling upon the petitioner to show cause and affording to it adequate opportunity of being heard. what has been, according to Mr. Prasad, achieved as a consequence of the collective bargaining as a service to the workmen, which is nothing but an extension of the obligations of the Management and thus a function, which the Management is duty bound to perform, should be respected by all concerned and the Management should not take a hostile approach, which shall, on the one hand cause injuries to the workmen's interests, and on the other hand, affect he interests of the Management as well. A scheme, which has been in vogue and which has benefited both the Management and the workmen and thus served an avowed public purpose, has been abolished for no good and valid reason.
4. In the counter affidavit, the respondent herein have maintained that the claim of the duty relief was not one achieved as a settlement under the Act, as alleged by the petitioner, but was a concession, which later was found prejudicial to the to the interests of the banking service, for which alone members of the petitioner Federation are recruited in the services of the respondent. While every employee of the Bank, who is a work is a workman, is free to indulge in legitimate trade union activities and this is recognised a right of every employee under the respondent-Bank, it is/ was only pursuant to a circular issued by the Indian Banks Association to the executives of all the members Banks, vide, circular No. PD/CE/21 dated August 21, 1981 that it was realised that the Government had noticed that some banks were permitting duty relief to office-bearers of the Unions of employees in terms of certain agreement entered into with them at the Bank's level, which was not warranted and which went against the very contract of service, i.e. employees were required to work full day and engage themselves during such working hours in such business of the Bank only, which was assigned to them.
5. Learned counsel for the respondent has accordingly contended that no employee of the Bank, only because he is one of the office bearer of a recognised trade union, can claim 'duty relief' as a matter of right. Such duty relief can be only at the detriment of the public interest that he was engaged in union activities and not performing his duties as an employee of the Bank.
6. Freedom of association, which is a fundamental right in our democratic polity, has given rise to trade unions of the workers mainly to assert collectively their rights. This was perceived and used as a foothold of the majority of working class, who suffered as individuals and needed well organised activities for protection of their interests. Governments of the States and the Union of India realised the expediency to provide for the recognition of the trade unions for facilitating collective bargaining as to their rights and obligations and as a result, came the legislative intervention finally in the shape of the Trade Unions Act, 1926 (Act 16 of 1926) pre-independence, and post-independence, in Article 19 of the Constitution of India, which read with Article 13 thereof has continued all such provisions of the Act in force, which are not inconsistent with any provision or part of the Constitution of India. Article 12 of the Constitution has recognised, besides the States as such and the Governments, including the Central Government, other legal entities and authorities, who have the status, privileges and obligations of a State under Part III of the Constitution of India. The respondent-Bank, it is conceded, has therefore, on the one hand, strictly to abide by and follow such legislations, which protect the interests of the employees and regulate the activities of industrial undertakings, and, on the other hand, to act strictly in conformity with the provisions under Articles 14, 16, 21 and 23 of the Constitution of India. In principle, thus, the respondent-Bank cannot withdraw the conditions of service of alter the same, except in accordance with the prescribed procedure of law in this behalf, i.e. following the procedure as contemplated under Section 9A of the Act, and in the event of any industrial dispute arising in this behalf, to abide by the procedure for adjudication, if such a dispute is raised by the petitioner and reconciliation has failed. The issue in the instant case will, be, whether the Government of India is justified in refusing to make a reference of the dispute to the appropriate authority for adjudication.
7. Mr. Prasad, learned counsel for the petitioner, has been right and in a sense forthright, in delineating the relationship which the Management and the workmen are required to maintain and canvassed with some vehemence before me that in the course of development of the new concept of workers' participation in the management, it will be unwise to treat the trade union activities as independent activities of the workmen and not as a part of the activities of the Management and thus, according to him, by granting duty relief to the office bearers of the recognised Unions, the Management has really put them on duty of union activities. The respondent-Bank has acknowledged this expediency of the expanding activities of the Management and recognised the need of granting to the office-bearers freedom from the routine work of the Bank to perform a more important duty pertaining to the trade union activities and in greater public interest.
8. I have recorded in brief the relevant facts and the stand that the petitioner and the respondent have taken before me and chosen to borrow some of the words of Mr. Prasad as used with a view to persuade the court to agree to his contention that the Management having once agreed to keep the office-bearers of the recognised trade unions free of routine duty, has acted illegally and arbitrarily in withdrawing the same.
9. It is not necessary, in my opinion in the instant petition, to examine why the Government of India intervened and why the respondent decided to withdraw the so-called privilege extended to the office-bearers of the Unions. It is also unnecessary in my view to enter into the philosophy of the Management and labour relationship, the rights and privileges which the workers should enjoy and the freedom, which the employees in any Government Undertaking should enjoy, etc. Every trade union is a body corporate and has all the implied rights of a Body Corporate. The Trade Unions Act, 1926, provides for the formation of a trade union with combination of seven or more persons, for the objects as spelt out for each individual unions and since a registered trade union is recognised as a legal entity, which is given under Section 15 of the Trade Unions Act, an option to spend out of the general fund of the trade union, the right to pay salaries, allowances and expenses to its office-bearers. Even a cursory examination of the Trade Unions Act gives out that registered trade unions and in certain situations even unregistered trade unions, can take up issues that concern its members and activities of the Unions are ordinarily confined to projecting the interests of the workmen and sit as a representative body of the workers in all negotiations with the Management. Such of the members of the trade unions, who become the Executives of the office-bearers of the Unions, do not by such position acquire a different status and by dint of such status, acquire no special privilege other than any member of the Union possesses. Capacity of a member of the Union or capacity of an Executive or office-bearer of the Union, brings no change in the capacity or status of the worker as an employee of the Establishment or undertaking concerned. His relationship in the Establishment or Undertaking where he works with the Management, is governed by the contract of service or by such statutory rules, regulations or other statutes, which determine the conditions of service of the employees of such Establishments or undertaking. Viewed thus, no member of the petitioner Federation/Union is entitled to claim as a condition of service freedom to indulge in trade union activities. Fundamental freedom of association is recognised in the case of the workers and as a trade union gives to them the freedom to become members of the Union and take up such activities, which are not unlawful and which are in the interests of the workers and the public at large. Their indulging in such activities, however cannot be at the cost of work for which they are engaged and for which along they are paid their respective emoluments by the employer, i.e. the Management. What they do as members of the trade Unions and what they do as employees in the business or the work of the Management, are totally different activities.
10. The concession that the respondent thus had extended to the office-bearers of the recognised Unions of the petitioner was not as a part of the conditions of service. It was something granted by the respondent to the petitioner as a concession, which is not found sanctioned by any law except some sort of an agreement entered into between the petitioner/Federation and the respondent/Management, which evidently was not a part of the contract of work. No writ in the nature of mandamus, can, therefore, issue for the enforcement of such a condition that the respondent/Management must treat some of the office-bearers of the recognised Unions as employees, who have the freedom from work, but are protected for the benefits of the contract of service or work. A writ in the nature of service or work. A writ in the nature of certiorari thus for quashing the communication, under which the respondent has asked its employees to report for work and not to take any advantage of any circular, whereunder they are given the freedom from work, cannot issue. The obvious reasons for this is, as a consequence of the interference with the said order, the office-bearers of the Federation of the Petitioner shall not report for work and say that they have the freedom under some agreement with the Management of the respondent not to report for duty. It is a fit case, in my opinion, in which, this Court should not exercise its extraordinary jurisdiction and interfere with the impugned notice.
11. There is also no force in the contention of the learned counsel for the petitioner that the dispute, which has arisen on account of the alleged notice under Section 9A of the Act, is an industrial dispute and the matter should be settled only by adjudication before the appropriate forum. Since I have found that the above concession is not a part of the conditions of service, it is a matter not covered by Section 9A of the Act at all and it is not enforceable as a right by any forum of law.
12. Before I part with this judgment, I may record that withdrawal of the concession aforementioned should not develop as a tussle between the trade unions and the Management and I share the concern with the learned counsel for the petitioner in this behalf that the respondent/management should not use this as a weapon to deny to the office-bearers of the recognised unions such genuine trade union activities, which, as office-bearers, they are expected to attend to in the interest of the workers and in the public interest. There shall be nothing wrong if the Executives or the office-bearers of the Unions/Federation indulge in trade union activities in their off-duty hours and even during duty hours after giving advance information in this behalf to the Management and showing to the Management the urgency and the need to attend to such work quickly, and the Management will benefit itself by accepting such genuine requests of the Executives/office-bearers of the Unions/Federation, as they will have no occasion to complain that because the Management did not give opportunity to them, they could not properly guide the organised movement of the workers and if there was any unfair trade practices, they were not able to deal with it only because the Management did not give permission to them to act promptly and timely. In such circumstances, in my view the Management shall be obliged to give to the office-bearers and Executives of the trade unions/Federation permission to do the endeavour as a part of their trade union activities, but without prejudice to their duties in the respondent Bank for which they are employed.
13. To sum up I find no merit in the instant petition. With the observations as above, it is accordingly dismissed. There shall, however, be no order as to costs.