Kerala High Court
Chackola Spinning & Weaving Mill vs Chackola T.M.T. Union on 16 November, 2001
Equivalent citations: [2002(93)FLR194]
Author: K. Balakrishnan Nair
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The point raised in this appeal is whether, in the absence of any statutory provision, the Labour Commissioner of the State can conduct a referendum in a private sector company for assessing the relative strength of the various trade unions for the purpose of granting recognition to them as bargaining agents. The brief facts necessary for the decision are the following: The writ petitioner is a registered trade union of the workmen of the Chakolas Spinning & Weaving Mill, Kalamassery. Respondents 5 to 9 are recognized trade unions of the said Mill. According to the writ petitioner, even though about 152 workmen belong to it out of the total 450 workers of the Mill, it is not recognized as a bargaining agent. Unions without the support of even fifteen employees are being recognized, it is submitted. Therefore, according to the petitioner Union, a referendum should be held to ascertain the relative support of the Unions and only on the basis of referendum, recognition can be granted to the Unions. So, the Original Petition was filed seeking a writ of mandamus or any other appropriate writ, order or direction, directing the second respondent to hold referendum and grant recognition to trade unions in accordance with the Code of Discipline accepted by the Fifteenth Labour Conference in 1958. Other consequential reliefs were also sought. The contesting respondents opposed the prayers raising various grounds. The main ground was that the fourth respondent is not amenable to the writ jurisdiction of this Court and therefore the reliefs sought in the Original Petition could not be granted. The learned Single Judge allowed the Original Petition issuing the following directions:
"7. In the aforesaid circumstances, I direct the second respondent to depute an Officer of Labour Department to arrange for a referendum to be held for assessing the representative nature of the contesting unions. Suitable standards after discussions may be set by the Officer, at his discretion, and the 4th respondent will have to co-operate with him to see that the function is carried on smoothly. Respondents 5 to 9 also have to partake and associate with the referendum, and the recognition of the bargaining agent will be exclusively decided by the outcome of the referendum.
8. Appropriate consequential orders are to be issued by the 2nd respondent within one month from today. As far as possible the exercise should be got completed by 31st July. 2001".
2. The present Appeal is filed by the fourth respondent in the Original Petition, the Managing Director, Chackolas Spinning & Weaving Mill, Kalamassery. The main ground urged is that the appellant not being a public sector undertaking or an authority under the purview of Article 12 of the Constitution of India, the Writ Petition should not have been entertained. It is also canvassed that the dispute regarding recognition can be the subject matter of an industrial dispute and therefore the dispute raised in the Original Petition has to be resolved before the Forums provided under the Industrial Disputes Act. It is further reiterated that in the absence of a common law right or statutory right, the writ petitioner is not entitled to any relief.
3. We heard both sides. They reiterated their respective stands. At the appellate stage, the writ petitioner produced Annexure R1(a) to show that by a conciliation settlement dated 22.12.1988, the Unions agreed to abide by the Code of Discipline in industry which was evolved at the 15th session of the Indian Labour Conference and adopted at the 16th session of the standing Labour Committee. According to the Writ Petitioner, it provides for referendum of recognition of trade unions. Counsel for the writ petitioner relied on the decision in General Secretary, Rourkela Sramik Sangh v. Rourkela Mazdoor Sabha & Ors. (1991 (II) LLJ 257). But the said decision concerns the recognition of trade unions in a Public Sector Undertaking.
4. It is a fundamental principle of administration of justice that "where there is a right, there will be a remedy". The source of right can be statute, custom or contract. In the case at hand, the writ petitioner to succeed should show that the second respondent has got a duty to hold referendum to ascertain the relative strength of the trade unions for the purpose of granting recognition. If there is such a duty cast on the second respondent Labour Commissioner, it may create a corresponding right in the writ petitioner which is a trade union of the workmen under the fourth respondent. In the absence of any such right, the petitioner is not entitled to get any relief from this Court.
5. The dispute regarding recognition of trade unions is a perennial problem, the machinery for settling which can be provided only by the legislature. The case of the petitioner may be correct. The management may be encouraging and protecting trade unions having no backing of the workmen. It may be excluding the writ petitioner from negotiations even though it has got substantial support among the workmen. It is ideal to have a legislation providing for periodical referendum to ascertain the strength of the trade unions for the purpose of recognition as bargaining agents. But, it is for the legislature to address this problem and to find appropriate solution. In the absence of any statutory duty, this court is not justified in giving any direction to the Labour Commissioner to hold referendum in a private sector company. If it was a public sector undertaking, it would be governed by the mandate of Article 14 of the Constitution of India to act fairly in the matter of recognition of trade unions. If this Court is convinced of the unfairness practiced by an authority amenable to this Court's jurisdiction, it can definitely interfere and issue appropriate directions to ensure that it acts in a just, fair and reasonable manner. The fourth respondent not being bound by Article 14, this Court must keep its hands off.
6. It does not mean that in the face of unfair action by a private sector management in the matter of recognition of trade unions, the writ petitioner is left without any remedy. As stated earlier, such a dispute will definitely be an industrial dispute which can be agitated under the forums provided under the Act. Unlike this Court, the Labour Court/the Industrial Tribunal is not bound by the principle 'where there is right there will be a remedy', but it can create new rights where none exists, having regard to the justness of the demand of the workmen.
7. Therefore, without prejudice to the alternate remedies available to the writ petitioner, we allow this Appeal and dismiss the Original Petition.