Gujarat High Court
Gujarat Energy Employees Technical ... vs Gujarat Urja Vikas Nigam Ltd. on 26 July, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3999/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3999 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4381 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5005 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5155 of 2018
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GUJARAT ENERGY EMPLOYEES TECHNICAL ASSOCIATION
Versus
Gujarat Urja Vikas Nigam Ltd.
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Appearance:
MR BHAUMIK P. PATEL for HL PATEL ADVOCATES(2034) for the
PETITIONER(s) No. 1,2
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 26/07/2018
ORAL ORDER
1. All the petitions involve similar questions of facts and law, and therefore, they were heard together and are being decided by this common order.
2. In three petitions being Special Civil Application Nos.3999 of 2018, 5005 of 2018 and 5155 of 2018, the petitioners have mainly challenged the Circular dated 20.2.2018 issued by the respondent Gujarat Urja Vikas Nigam Limited (hereinafter referred to as "GUVNL"), whereas in Special Civil Application No.4381 of 2018 the petitioner has prayed to direct the Page 1 of 9 C/SCA/3999/2018 ORDER respondent GUVNL to implement the said Circular dated 20.2.2018. For the sake of convenience, the facts of SCA No.5155 of 2018, in which the pleadings are complete, are taken into consideration.
3. Special Civil Application No.5155 of 2018 has been preferred by the petitioners Mahendrabhai Navinbhai Parmar, claiming to be the office- bearer of Gujarat Electricity Employees' Union, Surat, and the Shree Vijli Karmachari Maha Mandal, Gandhinagar, through its Secretary General A. G. Mirza, seeking writ of mandamus/certiorari for quashing and setting aside the Circular dated 20.2.2018 and further seeking direction against the respondent GUVNL to deduct the subscription of the petitioners and send the same to the Union. It may be noted that the said petitioner No.2 Mandal through its Secretary General A. G. Mirza has also filed SCA No.5005 of 2018, seeking almost the identical reliefs, without disclosing the said fact in SCA No.5155 of 2018.
4. As per the case of the petitioners, the respondent GUVNL has been divided into seven different companies, and the day-to-day negotiations, discussions, settlement of disputes, settlement of charter of demands, etc., are being held by the respondent GUVNL and its subsidiary companies with the Unions recognized by the respondent GUVNL. For the Page 2 of 9 C/SCA/3999/2018 ORDER purpose of recognition, there is a check off system by which an employee has to disclose the Union to which he is the member, and on that basis the company has to deduct the subscription and send it to the respective Union, in which he declares to be the member. The Union which possesses minimum 15% membership of the total working staff in the company is recognized by the respondent company as a sole bargaining agent for the purpose of settlement of disputes and charter of demands. The Union so recognized by the company functions as recognized Union for a period of two years and after the completion of two years, an exercise of verification of membership through check off system is again undertaken.
5. It is further case of the petitioners that the verification of membership was due in the year 2018. The Company, therefore, had issued a Circular dated 19.12.2017 giving details about the instructions and fixing the dates for submitting the consent letters for the purpose of check off system. Accordingly, 2.5.2018 was the last date for recognition of the Union. However, in the meantime, the respondent GUVNL issued a Circular dated 20.2.2018, making clarification to the effect that if the name of the Union is changed by the employees by making eraser or over-writing or correction in the consent letters, such consent letters shall not be taken into consideration by the concerned Page 3 of 9 C/SCA/3999/2018 ORDER officers and the same shall be returned to the concerned employees without any deduction of subscription and such forms of the employees shall not be considered for the purpose of check off system. The said circular is under challenge in the three petitions as stated herein above, however, the petitioners of SCA No.5155 of 2018 has supported the implementation of the said circular.
6. The petition has been resisted by the respondent GUVNL by filing affidavit-in-reply contending inter alia that Special Civil Application No.5155 of 2018 was liable to be rejected as the petitioner No.2 was also the petitioner in SCA No.5005 of 2018, seeking the same prayers and the said fact has not been disclosed in SCA No.5155 of 2018. The respondent has narrated the history of the check off system and about the earlier petitions filed by the Unions from time to time. The respondent has also stated about the various circulars issued by the respondent Company with regard to the check off system during the period 2012 to 2017. As regards the year 2018, it has been contended that a circular dated 19.12.2017 was issued by the respondent Company giving set of instructions for check off system and for deduction of subscription of fees, which is on record at Annexure-R/16. It is further contended that one Shree Vidhyut Kamdar Sangh a recognized trade Union of employees working in Page 4 of 9 C/SCA/3999/2018 ORDER the subsidiary companies had approached the Registrar with the prayer to amend its Constitution. The said Sangh had submitted registration certificate stating that the name of Shree Vidhyut Kamdar Sangh has been changed as Shree Gujarat Vijli Karmachari Maha Mandal. In view of the request made by the said mandal and the employees, and after obtaining legal opinion from its advocate, respondent GUVNL had issued guidelines to the concerned Department Heads, instructing them that if in the forms, Shree Vijli Karmachari Maha Mandal was written in place of Shree Vidhyut Kamdar Sangh, such forms be accepted. However, it was found that there were several over-writings and corrections made in the forms by the employees while mentioning the name of the Union, and it was not possible for the subsidiary companies/Discoms of respondent GUVNL to ascertain about the membership of the employees with a particular Union. The respondent Company, therefore, had issued Circulars dated 20.2.2018 and 7.3.2018 clarifying the situation to the effect that where there are over-writings and/or where the name of the Union is changed, the authorization letter would not be valid. Accordingly, the respondent Company though had permitted change in the name of the Union, had cancelled the forms where the name of Shree Vidhyut Kamdar Sangh was mentioned, and allowed the forms where the name of Shree Vijli Karmachari Maha Mandal Page 5 of 9 C/SCA/3999/2018 ORDER was mentioned. The said Circulars being only clarificatory in nature, to curb the illegality, keeping the welfare of the employees at the centre, the same could not be challenged by the petitioners. It is contended that the said Circulars were issued after following the procedure by the respondent GUVNL and without any ill-will or ill-motive towards any Union, and therefore, the petitions deserve to be dismissed.
7. Learned Advocate Mr.T. R. Mishra and learned Advocate Mr.Clerk appearing for the petitioners in the petitions challenging the validity of the circular dated 20.2.2018 vehemently submitted that the respondent GUVNL had issued the said Circular during the process of check off system, keeping grudge against the Union Shree Vijli Karmachari Maha Mandal, and with a view to promote the Union called Akhil Gujarat Vidyut Kamdar Sangh, the petitioner in SCA No.4381 of 2018. According to Mr.Mishra, the forms/consent letters of the members of erstwhile Mandal i.e. Shree Vidhyut Kamdar Sangh were cancelled by the respondent Company, though they had given consent to be the members of Shree Vijli Karmachari Maha Mandal. According to him, only the name of the Union from Shree Vidhyut Kamdar Sangh was changed to Shree Vijli Karmachari Maha Mandal, after obtaining approval of the Registrar of Trade Unions, and there was no change in the number of registration. Hence, Page 6 of 9 C/SCA/3999/2018 ORDER the respondent Company should not have cancelled the consent forms of those employees, who had mentioned the name of the Union as Shree Vijli Karmachari Maha Mandal i.e. the Union, which was also qualified to participate in the check off system.
8. However, the learned Advocate Mr.D. R. Dave appearing for the respondent Company submitted that the Circular dated 20.2.2018 was issued only for the purpose of clarification and there was no ill-intention on the part of the respondent Company. He also submitted that a number of corrections and over-writings were found in the consent forms of the concerned employees, and the such employees had also not put their initials at the places of corrections, and therefore, their consent letters/forms were not considered during the check off system.
9. Learned Sr. Advocate Mr.Shalin Mehta appearing for Akhil Gujarat Vidyut Kamdar Sangh, the petitioner in SCA No.4381 of 2018 has also supported the submissions made by the learned Advocate Mr.Dave for the respondent GUVNL and further submitted that Shree Vijli Karmachari Maha Mandal having used the printed forms of its erstwhile Union i.e., Shree Vidhyut Kamdar Sangh, the said forms were required to be rejected for the purpose of check off system and the Circular dated 20.2.2018 was rightly implemented for the welfare of the employees.
Page 7 of 9 C/SCA/3999/2018 ORDER10. In the instant petition, it appears that the whole controversy appears to have arisen as the petitioner Shree Vijli Karmachari Maha Mandal of SCA No.5005 of 2018 had changed its name as such from Shree Vidhyut Kamdar Sangh and as the said petitioner continued to use the same old printed forms in the name of its erstwhile Union i.e. Shree Vidhyut Kamdar Sangh. The employees, therefore, had to make corrections in the name of Union mentioned in the said forms and that created confusion in the minds of the officers of the respondent Company, which led to the issuance of the Circulars dated 20.2.2018 and 7.3.2018 by GUVNL, clarifying to the effect that the forms containing erasers, corrections or over-writings without the initials made by the concerned employees shall not be considered for the purpose of check off system. Such Circulars being only clarificatory in nature it could not be said that the same were issued with any mala fide intention. In order to make clarity about the membership of the concerned employees with a particular Union, the employees were required to give specific consent in the consent letters/forms without any overwriting/correction. Such circular as stated in the affidavit-in-reply by the respondent Company, was in the interest of the concerned employees. Though it was sought to be submitted by the learned Advocates Mr.Mishra and Mr. Clerk that the respondent Company could not have Page 8 of 9 C/SCA/3999/2018 ORDER issued the said Circulars when the process of check off system was going on, the Court does not find any substance in the said submission. As stated earlier, such circulars being only clarificatory in nature, did not vitiate any right of any Union as alleged by them.
11. In that view of the matter, the three petitions being SCA Nos.3999, 5005 and 5155 of 2018 are dismissed. Since the said Circular dated 20.2.2018 has already been implemented by the respondent Company, rejecting the forms, which did not satisfy the criteria prescribed in the said Circular, no further order is required to be passed in SCA No.4381 of 2018 and the same stands disposed of accordingly. Interim relief, if any, operating as on today stands vacated forthwith. The request made by the learned Advocate Mr.Mishra and Mr.Clerk to continue the interim relief is rejected for the reasons stated herein above.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 9 of 9