Document Fragment View

Matching Fragments

29.Mr.R.Y.George Williams, learned counsel appearing for the 13th respondent had adopted the arguments of other counsels.

30.In the light of the rival contentions, it has to be seen whether the petitioner has made out any case for grant of relief as prayed for by him?

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."
19(2)The method of secret ballot to ascertain majority of membership is derogatory to the Code of Discipline."

44.Apparently, these distinctions were not brought to the notice of the division bench which disposed of W.A.No.1425 of 2006. The division bench held that the decision of the Supreme Court in FCI case (cited supra) was binding, but did not refer to the procedure evolved for recognition of trade unions under the Code of discipline.

45.The division bench in MRF Workers Union, rep by its General Secretary, Arakkonam Vs. Government of Tamil Nadu and others reported in 2009 (4) LLN 967 = 2009 (4) LLJ 685 (Mad) though did not refer to the ratio of the Full Bench of the Bombay High Court in Air India's case (cited supra) more or less came to the correct conclusion while giving its directions. It confined itself in directing the authorities of the labour department to follow the 'code of discipline' procedure (i.e., verification method) in granting recognition. The division bench headed by H.L.Gokhale, C.J (as he then was) did take note of the fact that secret ballot was not part of any statutory requirement under law. It is necessary to extract para 37 of the judgment which is as follows:

6.Admittedly there is no statutory provision in this case dealing with the question of recognition or re-recognition. Equally admittedly the Code of Discipline in Industry is not statutory. Notwithstanding this, it is conceded by the learned counsel for the appellant that the Code of Discipline in Industry does contemplate recognition and that it was only under that Code recognition was applied for and granted. It is not disputed that the grant of recognition confers a status on a body like the respondent-union to represent the workers in a particular category, with reference to their service conditions, with the management; in other words, it becomes a bargaining agent on behalf of the group of workers with reference to which it was recognised. Withdrawal of that statute or recognition will certainly bring about adverse consequences, on a body like the respondent-union, and with reference to such adverse consequences, even an order of withdrawal like the one made by the appellant if it is illegal or is in violation of principles of natural justice. Certainly a body like the respondent-union can approach this Court under Art.226 of the Constitution of India. Therefore, we reject the contention of the learned counsel for the appellant that the writ petition was not maintainable."