Document Fragment View

Matching Fragments

5....It may be noted in this connection that these private bodies are not enforcing any statutory direction by filing such writ petitions inasmuch in the State of Tamil Nadu, there is no law relating to grant of recognition to a trade union, nor is there any law relating to holding of election of such trade unions...."

31.The question of granting of recognition of the trade union in the State of Tamil Nadu is not based upon any statutory right and that it has already been noted by a division bench of this court in K.V.Sridharan's case (cited supra). Ever since the Code of Discipline adopted in the tripartite labour conference was utilized. Since in the absence of any law in the trade union recognition and any recognition granted by any employer is only based upon the code of discipline evolved in a tripartite labour conference. The said code in relation to the criteria for recognition of the union may be reproduced as follows:

7.Once the Code of Discipline is applicable to the industry, it is that Code that must be followed. The Code of Discipline does not provide for determining the majority character of the union by secret ballot. Is it then open to a Court exercising its extra ordinary jurisdiction to substitute a procedure for determining the representative character of the union by one not provided for by the Code of Discipline and not greed to by all the relevant parties. The judgment of the Division Bench proceeded on the assumption that the predominant feature of the Code of Discipline was to provide for recognition on the basis of criteria of majority and how that majority can be ascertained was incidental to the main scheme and that the device of secret ballot would not be derogatory to the scheme of the Code of Discipline. What the Court did was to read a procedure for determining the majority character of the union not provided for by the Code of Discipline. The learned Bench also did not examine the procedure laid down in the Code of Discipline to test the argument whether the method of secret ballot was in consonance with the procedure for verification of membership to determine the majority character of the union. This important aspect was neither considered nor answered by the learned Division Bench. We will refer to that procedure whilst answering the other questions, which have been referred. Once the Code of Discipline applies to the industry and the parties had agreed to follow the Code of Discipline, it is really not open to a Court, to substitute its judgment in place of the agreed procedure for ascertaining the majority of the union as provided for in the Code of Discipline, whatever may be the merits or demerits of the verification procedure. The right to provide a methodology is in the Legislature and failing legislation in the executive. A Writ Court can issue direction so as to make the relief to be granted effective. It cannot however, by its judgment decide as to what is the best method when the method is already laid down by a competent organ under the Constitution. At the highest, if the method is challenged, it can if grounds are available, declare the same as being unconstitutional. In our opinion, the law as laid down in O.N.G.C. is contrary to the procedure for verification of membership as provided for in the Code of Discipline and consequently the judgment in O.N.G.C. stands overruled."

Issue No.2:

"17.On a consideration of the provisions and the judgments, what follows is that secret ballot would only indicate preference of an individual employee on the date the secret ballot is held for a particular union, even if he be not its member. It cannot be a method for verification of membership of the union in terms of the Code of Discipline for the particular period of verification of membership. The method of secret ballot for ascertaining majority of membership is, therefore, derogatory to the Code of Discipline.
"37.Having noted this scenario and considering that there is continuous strife in the company, in our view, the Court cannot simply remain a silent spectator. We are aware that the Court has its own limitations while exercising jurisdiction to issue appropriate writ or direction. On analyzing the provisions of Article 19(1)(c), it recognizes the right to form association and also the mandate of Industrial Disputes Act that there should be recognized union and when there is a inclination of the State Government to accept a particular procedure, which is otherwise also accepted in different statutes throughout the country, in our view, the correct course will be to give a direction to the Commissioner of Labour to call upon the two unions to submit their membership degails as per the Code of Discipline and examine their membership as provided under the Code over a period. In the event, there are any objections, the objections could be verified in the light of clause-7 of the Code of Discipline by personal interrogatories so as to arrive at the correct membership of either of the two trade unions. Alternative to this procedure namely, ballot system, which, although is recommended by the Committee of the ILO, is not accepted in any of the statutes which have been brought to our notice. The recommendations of the Committee can only be respected to this effect that there has to be a collective bargaining agent of the workmen, which is to be a truly and independent representative agent. As far as the methods suggested by the Committee is concerned, it would result into determination on the basis of the facts arrived at a particular point of time, which has not been very much appreciated as a proper method. The method of verification on the other hand will show the following of a particular union over a longer period and would definitely be a better option. The other alternative approach is to say that none of the methods is recognized and therefore the choice of the management will prevail. That certainly cannot be permitted in view of the provisions of the fifth schedule of the Act. The Code of Conduct has a force of acceptance of the organizations of the workers and of the Management and also of the Government, and is being following in different undertakings. Further, it is also in tune with the provisions of the different statutes in different States."