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5. Let us now consider the issues that have been referred to us. In the first instance, it would be appropriate that we consider Question No. 3, as to whether the judgment in O.N.G.C. Karmachari Sanghatana (supra) was correctly decided. A Writ Petition came to be filed by O.N.G.C. Karmachari Sanghatna, claiming that the issue as to which is the union commanding majority of membership should be decided by secret ballot. This was opposed by the rival unions pointing out that secret ballot is not known to the Code of Discipline, which has prescribed the method of verifying membership and the method of verification alone, should be adopted. A learned Division Bench, noted that the Appendix III of the Code of Discipline prescribes the procedure to ascertain who has the majority of membership by physical verification of the membership by the authority concerned. The learned Bench however, noted that the Sanghatana had contended that this device is not completely free from defects and is capable of manipulation and there can be extraneous considerations, for the members while invoking their choice and in view of that secret ballot should be one of the methods which is less vulnerable. The attention of the learned Bench was invited to the Judgment in Automobile Products of India Employees Union v. Association of Engineering Workers, Bombay (supra). The learned Bench noted that the dictum laid down therein was that the procedure should not be completely derogatory to the scheme of the Act. The learned Bench then posed to itself a question, as to whether the method of secret ballot, if adopted, to ascertain the majority of membership would be derogatory to the Code of Discipline. It observed that the predominant feature of the Code of Discipline is to provide for recognition, on the basis of the criteria of majority. How to ascertain majority is incidental to the main Scheme. Reliance was then placed on the judgement in Food Corporation of India Staff Union v. Food Corporation of India and Ors. . The learned Bench observed that the Supreme Court had occasion to consider this aspect. The observation of the Supreme Court that the method of secret ballot is being gradually accepted was noted and the learned Bench proceeded to hold that the claim of the Petitioners to adopt the device of secret ballot for ascertaining the majority is therefore, justified and accordingly issued direction for ascertaining majority membership of the Union by secret ballot.

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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 agreed 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 judgement 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.

9. It is thus clear that the Employer and Unions in the industry which accepts the Code of Discipline have to follow the method of verification of membership as laid down therein. Once the procedure is accepted, is it open to any of the parties who agree to abide by the Code of Discipline to seek a procedure different from the procedure agreed. The code of Discipline admittedly does Page 0009 not provide for deciding who has the majority of membership, by holding secret ballot.

10. Some aspects on the report of the National Commission of Labour signed on 20.8.1969 may now be adverted to. The report notes that it attaches considerable importance in the matter of recognition of unions, as Industrial democracy implies that the majority unions should have the right to sole representation i.e. the right to speak and act for all workers and to enter into agreements with the employer. The report notes that the need for provision for recognition of Unions was also stressed in the second five year plan. Because of the desire to go slow on legislation, recognition was provided for on a voluntary basis in the Code of Discipline. It was felt that it was desirable to make union recognition compulsory under a Central law, in all undertakings employing 100 or more workers, or where the capital invested is above a stipulated amount. The commission noted that serious differences exist, however, on the manner in which the following of a union is to be determined, whether it should be by (a) verification of the fee paying membership of the unions, or (b) election by secret ballot. The evidence led before the commission was that the support of one or the other procedure was evenly balanced. The contentions of the supporters of the verification or secret ballot were then noted. It was however, felt that whatever may be the method, there will have to be an independent authority to decide the representative character of unions, either by verification of membership or by holding elections by secret ballot.

16. The question consider the above discussion, really is, whether the expression "verification of membership" can bring within its fold the procedure of election like secret ballot. Verification of Membership in terms of the Code of Discipline requires that the membership of the Union is considered based on membership for a particular period. The object is to ascertain whether the worker maintains his loyalty to the union. The procedure of election on the other hand would require firstly preparation of a voters list based on the membership of all the unions in the industry/estabilshment. The election will only decide who holds the majority of membership on the date the elections are held. An elector who is a member of an Union for the relevant period for whatever reason, could still vote for another union either on account of change of his personal views or other considerations. Secret ballot will only decide as to which union, the workers repose their faith on the date of the election. Secret ballot will not decide the issue as to membership of the union for the relevant period. The method of secret ballot in the context of the procedure provided by the Code of Discipline as a method of determination of the majority of membership of the Union for a particular period would thus be derogatory to the Code of Discipline. Once there be a procedure and by consent, the parties agree to follow that procedure, it is not open to those parties and the authorities to depart from the procedure which has been voluntarily accepted by all the parties. The authorities cannot and impose another method of deciding who enjoys majority support. Once the parties accept the code of discipline, the procedure for determining the majority of membership in the industry in the area or the establishment, is the procedure laid down therein alone, and must be followed. Any departure would result in striking down the action. Those who consent to a particular procedural process, must abide Page 0015 by that procedural process and cannot deviate from the same, and if they do must suffer the consequences of their action being struck down.