Judgment · High Court · 2012

#7. Respondent No.7 filed W.P.(C) Nos. 5086/2007 and 1069/2008 befor e this Court challenging the legality of the lock out and seeking direction for ascertainment of majority to facilitate amicable settlement. However, for the re asons given in the judgment dated 11-02-2010, this Court declined to interfere a nd dismissed the writ petitions. In the meanwhile, management received number of petitions from t 8. he workmen requesting that the membership fee deduction from their wages should be stopped. Accordingly, such deduction was stopped w.e.f. July, 2010. Though re spondent No.6 had filed a civil suit alongwith an injunction petition against th e above, the learned Civil Court dismissed the injunction petition. Thereafter, the suit was also dismissed for default.

#9. An industrial dispute was raised by the respondent No.6 on the i ssue relating to stoppage of membership fee deduction from the wages of the work men. As conciliation failed, the State Government made a reference to the Indust rial Tribunal following which Reference Case No.7/2010 was registered, which is now pending.

#10. As both respondent Nos.6 and 7 claimed to represent majority of the workmen, management requested the State to facilitate an election based memb ership verification process. Thereafter, Labour Commissioner, Assam (Respondent No.3) directed the Assistant Labour Commissioner, Tinsukia to conduct membership verification through secret ballot. However, respondent No.6 objected to the me mbership verification process as according to it, the said issue is connected wi th the subject matter of the pending reference. As such, the verification proces s could not be completed. In view of such a situation, management decided to conduct verif 11. ication by interview method under the supervision of a retired Supreme Court Jud ge. But it was objected to by respondent No.6. In view of lack of consensus betw een the two unions, the State Government decided to disassociate itself from the verification process. In the meanwhile, on the request of respondent No.6, conc iliation proceeding was initiated by the Assistant Labour Commissioner by issuin g notice of conciliation dated 30-01-2012. Management was asked to maintain stat us-quo on the subject matter during the pendency of conciliation proceeding. As conciliation failed, report under section 12(4) of the Industrial Disputes Act, 1947 (Act) was submitted to the State Government.

#12. In the meanwhile, the LTS signed in the year 2008 expired on 31- 03-2012 and a new LTS was required to be signed. While invoking conciliation pr oceeding, respondent No.6 also submitted a charter of demand dated 21-03-2012 be fore the management.

#13. In view of urgency of the situation as signing of new LTS is dir ectly related to maintenance of industrial peace, management wanted to conduct m embership verification of the workmen under the supervision of a retired Supreme Court Judge to find out the majority union. 18-06-2012 was the date fixed for c onducting such verification but respondent No.6 did not allow such verification to take place.

#14. Management received a notice dated 19-06-2012 from the Industria l Tribunal, Dibrugarh stating that the Government has referred the dispute menti oned in the schedule therein to the Tribunal vide Notification No.GLR.274/2006/7 0 dated 02-06-2012 u/s 10(1)(C) of the Act and that by order dated 18-06-2012, t he learned Tribunal while directing the parties to file written statement, furth er directed the management to keep the membership verification process in abeyan ce. The relevant portion of the Government Notification dated 02-06-

#15. 2012 is as under :- (cid:28)1. oomdooma are justified in proposing for conducting membership verification of Un ions by interview method which will be conducted by a Retired Judge appointed by Whether the Management of Hindustan Unilever Personal Product Factory, D the management ?

#2. If not, whether the management should treat the Hindustan Unilever (P.P. Factory) Shramik Sangha, Doomdooma as only representing majority Union in the F actory? (cid:29) The following is the relevant portion of the order of the learne

#16. d Tribunal :- (cid:28) Seen the petition filed by the workmen who have appeared to-day itself. In the petition filed by the workmen it has been stated that the management has been m aking preparation for conducting membership verification of the Union by intervi ew method, to be conducted by a retired Judge. The management has already appoin ted a retired Judge for verification the membership by interview method. It has been contended by learned counsel for the workmen, that if the management contin ues with their exercise of verification of membership by a retired Judge during the pendency of this reference case before this Tribunal, the entire matter woul d be infructuous. It is pertinent to mentioned that a reference has already been received by this Tribunal from the Government for adjudication and a reference case has already been registered. The terms of Reference are as under & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &.. The terms of reference made by the Government to be adjudicated by this Tribunal , shows that, the Tribunal is to ascertained whether the management are justifie d in proposing for conducting membership verification of the Union by interview method to be conducted by a retired Judge appointed by the management. If the ma nagement, submitted by the learned counsel for the workmen, continues with verif ication of membership through retired Judge pending the reference on the same qu estion, it would rendered the entire exercise by this Tribunal infructuous. In the above view of the matter the contention of the workmen seems to have meri t. Since the notice of this reference is yet to be served on the management, it may not be proper to pass any order at this moment without hearing the managemen t. Let a notice of the petition filed by the workmen be served on the management fi xing 25-06-2012 for hearing on the petition. In the meantime the management is d irected, in the interest of justice, to keep their process for conducting member ship verification in abeyance, till hearing and disposal of this petition on 25- 06-2012. The workmen to take steps for serving notice on the management alongwit h a copy of this Order as well as the petition. (cid:29) Aggrieved, the management has filed the present writ petition wi 17. th the prayer as indicated above. The basic ground of challenge is that ascertai nment of membership strength of a union cannot be a subject matter of industrial dispute and, therefore, the reference is not maintainable as there is no existe nce or apprehension of any industrial dispute. The jurisdiction of the Industria l Tribunal to entertain the reference is also questioned on the ground of lack o f territorial jurisdiction inasmuch as the High Court at the relevant time had n otified that the concerned District and Sessions Courts will function as the Lab our Courts and Industrial Tribunals. Since the factory is situated at Doomdooma which falls within the judicial district of Tinsukia, the District Court at Dibr ugarh acting as the Industrial Tribunal did not have the jurisdiction to enterta in the reference. Order of the Industrial Tribunal is also challenged on the gro und that such an order of injunction could not have been legally passed.

#18. This Court by order dated 22-06-2012 had stayed the order of the learned Industrial Tribunal dated 18-06-2012. The Assistant Labour Commissioner, Tinsukia (respondent No.5) ha 19. s filed his affidavit contending that the subject matter of the reference, which has been registered as Reference Case No.1/2012, comes within the ambit of indu strial dispute as defined under section 2(k) of the Act.

#20. ference Case No.7/2010 is as follows :- Respondent No.6 in its affidavit has stated that the issue in Re (cid:28)1. Whether the Management of Hindustan Unilever Ltd. (PPF) Personal Product Factory, Doomdooma are justified in deciding to stop the sofar continued system of deduction of Sangha’s contribution @Rs.15/- per month per worker.

#2. gh their wage register. (cid:29) If not, whether the Management are bound to continue the deduction throu According to respondent No.6, the above issue also covers the issue raised in Re ference Case No.1/2012. Respondent No.6 has contended that it is the majority un ion and there is no impediment for the management to enter into LTS with it as w as done on the earlier occasion. It is further stated that the High Court has is sued subsequent notification restoring the earlier jurisdiction of the Labour Co urts and Industrial Tribunals and consequently, Reference Case No.1/2012 has bee n transferred to the Industrial Tribunal, Dibrugarh, which has the jurisdiction to adjudicate the reference. 21. Respondent No.7 in its affidavit has stated that respondent No.6 does not command the support of the majority of workers for which it is avoidin g the democratic process to disclose its strength. It is further contended that it is the respondent No.7 which has the support of majority of the workmen. Resp ondent No.7 supports membership verification through secret ballot. Finally, res pondent No.7 also contends that the subject matter of Reference Case No.1/2012 i s not an industrial dispute as defined under section 2(k) of the Act and, theref ore, the reference is not maintainable. In this respect, it supports the case of the management.

#22. Heard Mr. P.K. Goswami, learned Senior Counsel assisted by Mr. S . Sarma, learned Counsel for the petitioners. Also heard Mr. S.Sarma, learned Co unsel appearing for the State. Mr. S. Chakraborty and Mr. A. Dasgupta, learned C ounsels have appeared for respondents 6 and 7 respectively and they have been he ard. Though a number of grounds were taken in the writ petition, the 23. hearing has been confined to the issue as to whether membership verification of respondent Nos. 6 and 7 by the management for the purpose of ascertaining which is the majority union to enable the management to enter into fresh LTS is an ind ustrial dispute to enable the appropriate Government to make a reference under s ection 10(1)(c) of the Act. Learned Counsel for the petitioners has also confine d his submissions to this issue only. Mr. Goswami, learned Senior Counsel for the management submits t 24. hat considering the definition of industrial dispute as defined under section 2( k) of the Act, ascertainment of membership strength of a union cannot be a subje ct matter of industrial dispute. Neither can an inter-union rivalry be said to b e a trade or industrial dispute for the purpose of adjudication under section 10 (1)(c) of the Act. Learned Counsel has contended that the management is in no wa y connected with the dispute between respondent Nos. 6 and 7. All that it wants is to find out which of the two unions enjoy majority support so that the manage ment can enter into LTS with the majority union to ensure that such an exercise is not rendered futile by signing the LTS with an union which later on is found to be a minority union. Ascertainment of membership strength of rival unions by secret ballot method is a well established and well acknowledged procedure. Cont ending that issues arising in the pending Reference Case No.7/2010 and the prese nt Reference Case No.1/2012 are completely different, since the latter is not re latable to any industrial dispute, learned Senior Counsel submits that the impug ned reference is not maintainable and is, therefore, liable to be set aside and quashed. It is further contended that in the notice of conciliation dated 30-01- 2012 the schedule was unilateral action of the management to conduct membership verification of the Unions by interview method. Therefore, he submits that the s econd question in the schedule of the impugned notification, viz., whether the m anagement should treat respondent No.6 as the majority Union did not arise at al l. In support of his submissions, learned Senior Counsel has referred to and rel ied upon the following decisions:- Workmen of Dimakuchi Tea Estate -Vs- Management of Dimakuchi Tea Estate. AIR 1958 SC 353 (1964) 3 ALL ER 102 J.T. Stratford and Son Ltd. -Vs- Lindley and another. Sindhu Resettlement Corporation Ltd. -Vs- Industrial Tribunal of Gujarat. AIR 1968 SC 529 (1970) 1 SCC 108 State of Madhya Pradesh and others -Vs- Shardul Singh. 1990 Shri Ratan Kumar Dey and others -Vs- Union of India and others. (2) GLJ 391 AIR 1991 SC 1250 General Secretary, Rourkela Sramik Sangh -Vs- Rourkela Mazdoor Sabha. AIR 1995 SC 1344 Food Corporation of India Staff Union -Vs- Food Corporation of India. MANU/TN/4286/2010 Puducherry Shasun Chemicals and Drugs Niruvana Thozhilalargal Muneerta Sangam -V s- Labour Officer and another.

#25. Mr. S. Sarma, learned Counsel appearing for the State submits th at since the issue relates to determination of membership strength of the rival unions, the said process would have a decisive bearing on the rights of the riva l unions to represent the workmen. Therefore, in the opinion of the appropriate Government an industrial dispute exists, he submits. He, therefore, contends tha t the reference is maintainable and the reference requires to be adjudicated upo n by the Labour Court to ensure that lasting industrial peace prevails in the fa ctory.

#26. Mr. S. Chakraborty, learned Counsel for the respondent No.6 whil e adopting the submission of Mr. Sarma, additionally submits that the subject ma tter of the impugned reference being identical with the subject matter of the pe nding reference where the issue is stoppage of deduction of membership fee of re spondent No.6 from the wages of the workmen, adjudication of the impugned refere nce should not be aborted at this stage. He further submits that as the manageme nt had already acknowledged respondent No.6 as the majority union and entered in to LTS with it in the past, refusal of the management to enter into fresh LTS wi th respondent No.6 when it has already submitted fresh charter of demand on the plea of ascertaining membership strength of the rival unions is wholly untenable and without any justification.

#27. Mr. A. Dasgupta, learned Counsel for respondent No.7 while denyi ng the allegations made in the writ petition against his client, has, however, g enerally supported the stand of the petitioners. He submits that there is now a general consensus in the industrial sector that membership strength of a trade u nion should be determined or verified by secret ballot, which is considered to b e the most fair and democratic method. He also contends that the issue raised in the impugned notification does not come within the ambit of industrial dispute as defined under the Act and, therefore, the impugned notification is not mainta inable.

#28. In his brief reply, Mr. Goswami, learned Senior Counsel for the petitioners submits that the management is not taking sides with any of the two unions. The present exercise is intended only to find out the majority union fo r signing of the LTS, while also acknowledging the rights of a minority union. H e has submitted that there is nothing secretive about the membership roll of a t rade union, which in any case a trade union is required to maintain and furnish to the concerned authorities. In this connection, learned Senior Counsel has ref erred to the provisions of the Trade Unions Act, 1926, the Industrial Employment (Standing Orders) Act, 1946 and the Assam Rules framed thereunder. Winding up h is submissions, learned Senior Counsel submits that the impugned reference is wi thout jurisdiction and is, therefore, liable to be quashed. Consequently, the im pugned order passed by the learned Industrial Tribunal is nonest in the eye of l aw and accordingly, the same should also be set aside.

#29. The submissions made have been considered.

#30. The moot question is whether process of membership verification of a trade union would amount to an industrial dispute so as to enable the appro priate Government, in this case the State Government, to make a reference under section 10(1)(c) of the Act.

#31. A reading of Section 10(1)(c) of the Act would indicate that exi stence or apprehension of industrial dispute is the sine qua non of making a ref erence under the aforesaid provision. If the appropriate Government is of the op inion that an industrial dispute exists or is apprehended, it may refer the disp ute or any matter which appears to be connected with or relevant to the dispute to a Labour Court or Industrial Tribunal for adjudication. In view of above, a closer scrutiny of the expression (cid:28)industria 32. l dispute (cid:29) becomes imperative. Industrial dispute is defined in Section 2(k) of the Act, which means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is conne cted with the employment or non-employment or the terms of employment or with th e conditions of labour of any person. Section 2(k) of the Act is under :- (cid:28)2(k). (cid:29)industrial dispute (cid:29) means any dispute or difference between employers an d employers, or between employers and workmen, or between workmen and workmen, w hich is connected with the employment or non-employment or the terms of employme nt or with the conditions of labour, of any person. (cid:29)

#33. here are three parts, From a close analysis of the above definition, it is seen that t (i) there has to be a dispute or difference, (ii) the dispute or difference must be between employers and employers or betwee n employers and workmen or between workmen and workmen, (iii) the dispute or difference must be connected with the employment or non-em ployment or the terms of employment or with the conditions of labour of any pers on.

#34. As explained by the Apex Court in the case of Workmen of Dimakuc hi Tea Estate (supra), the first part refers to the factum of a real or substant ial dispute, the second part to the parties to the dispute and the third part to the subject matter of that dispute. The subject matter may relate to any of two matters, namely (i) employment or non-employment and (ii) terms of employment o r conditions of labour of any person. In that case, the Apex Court was examining the expression (cid:28)any person (cid:29) as appearing in Section 2(k) of the Act. While taki ng the view that the expression (cid:28)any person (cid:29) must be one in whose employment or non-employment, terms of employment or conditions of labour, the workmen as a cl ass have a direct or substantial interest, the Apex Court held that the industri al dispute must be a real dispute between the parties to the dispute so as to be capable of settlement or adjudication by one party to the dispute giving necess ary relief to the other party.

#35. In J.T. Stratford (supra), it was held in the context of Section 5 (3) of the Trade Disputes Act, 1906, which defines (cid:28)trade dispute (cid:29), that inte r-union rivalry prima-facie donot come within the statutory definition of trade dispute.

#36. In a recent decision of the Madras High Court in the case of Pud ucherry Shasun Chemicals and Drugs Niruvana Thozhilalargal Muneerta Sangam and a nother (supra), it has been held that grant of recognizance of a union cannot be brought under section 2 (k) of the Act and that it cannot be the subject matter of an industrial dispute. As has been held by the Hon’ble Supreme Court in Shardul Singh ( 37. supra), the expression (cid:28)conditions of service (cid:29) is an expression of wide import. It has been held that the expression (cid:28)conditions of service (cid:29) means all those con ditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension e tc.

#38. The second schedule to the Act enumerates the matters which are within the jurisdiction of Labour Courts. As per Section 7 of the Act, Labour Co urts are required to adjudicate industrial disputes relating to any matter speci fied in the second schedule, which is as under :- (cid:28)THE SECOND SCHEDULE (Sec section 7) MATTERS WITHIN THE JURISDICTION OF LABOUR COURTS

#1. anding orders; The propriety or legality of an order passed by an employer under the st

#2. The application and interpretation of standing orders;

#3. f relief to, workmen wrongfully dismissed; Discharge or dismissal of workmen including reinstatement of, or grant o

#5. Withdrawal of any customary concession or privilege; Illegality or otherwise of a strike or lock-out; and

#6. All matters other than those specified in the Third Schedule. (cid:29)

#39. Since all matters other than those specified in the third schedu le would also be within the jurisdiction of Labour Courts, matters which are enu merated in the third schedule, which are matters within the jurisdiction of Indu strial Tribunals, may also be looked into, which is as follows :- (Sec section 7-A) MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL TRIBUNALS (cid:28)THE THIRD SCHEDULE

#1. Wages, including the period and mode of payment.

#6. Compensatory and other allowances. Hours of work and rest intervals. Leave with wages and holidays. Bonus, profit sharing, provident fund and gratuity; Shift working otherwise than in accordance with standing orders;

#11. Classification by grades; Rules of discipline; Rationalisation; Retrenchment of workmen and closure of establishment; and Any other matter that may be prescribed. (cid:29) A trade union is required to be registered under the Trade Union 40. s Act, 1926. (cid:28)Trade dispute (cid:29) under the Trade Unions Act has been given the same meaning as under the Act. Trade union is defined under section 2(h) of the Trade Unions Act. Under section 6 of the said Act, to be entitled to registration, a trade union must provide a list of its members with adequate facilities for its inspection. To maintain its registration, a trade union must have as its members not less than ten percent or one hundred of the workmen, whichever is less, sub ject to a minimum of seven, engaged or employed in the concerned establishment o r industry. A trade union is also required to submit annual return to the Regist rar of Trade Unions under section 28 of the Trade Unions Act wherein the number of members have to be disclosed.

#41. Even under section 3 of the Industrial Employment (Standing Orde rs) Act, 1946, the employer while submitting the draft standing orders, is also required to furnish a statement giving particulars of the workmen employed in th e industrial establishment including the name of the trade union to which they b elong.

#42. Thus, it can be seen from the above that there is nothing secret ive about ascertainment of membership strength of a trade union. Neither can the re be any prohibition on disclosure of an union’s membership roll. In fact, disc losure of the same is a statutory requirement under various enactments. Again, t o find out the actual strength of a union, the secret ballot method is being gra dually accepted. The Apex Court in the case of Food Corporation of India Staff U nion (supra) has observed as under :- (cid:28)1. Collective bargaining is the principal raison d’etre of the trade unions. Ho wever, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establis hment, the trade union is first required to get itself registered under the prov isions of Trade Unions Act, 1926. This gives a stamp of due formation of the tra de union and assures the mind of the employer that the trade union is an authent icated body; the names and occupation of whose office bearers also become known. But when in an establishment, be it an industry or an undertaking, there are mo re than one registered trade union, the question as to with whom the employer sh ould negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workm en/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employers should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discu ssion and some dispute. The ’check off system’ which once prevailed in this doma in has lost its appeal; and so, efforts are on to find out which other system ca n foot the bill. The method of secret ballot is being gradually accepted. All co ncerned would, however, like to see that this method is so adapted and adjusted that if reflects the correct position as regards membership of the different tra de unions operating in one and the same industry, establishment or undertaking. (cid:29)

#43. Therefore, from a careful assessment of the discussions made abo ve, it can be said that to be an industrial dispute, all the three components co mprising the definition of industrial dispute as highlighted in paragraph 33 abo ve, must co-exist. In the absence of even one, the dispute will not be an indust rial dispute. Ascertainment of membership strength of a trade union per se would not be a dispute relatable to the employment or non-employment or the terms of employment or the conditions of labour of the workmen working in the factory of the management. Thus, the conclusion is inevitable that the process of conductin g membership verification of rival unions by the management would not be an indu strial dispute as per the statutory definition of industrial dispute u/s 2(k) of the Act.

#44. In so far the second question in the impugned notification, name ly, as to whether the management should treat respondent No.6 as the majority un ion, is concerned, it doesnot arise for consideration at all as the same was not a subject matter of the conciliation proceeding as would be evident from the no tice of conciliation dated 30-01-2012 where the schedule was, alleged unilateral action of the management to conduct membership verification of the unions. In S indhu Re-settlement Corporation Limited (supra), the Hon’ble Supreme Court held that if no dispute is raised by the employee with the management, any request se nd by them to the Government would only be a demand by them and not an industria l dispute between them and their employer. A mere demand to a Government without a dispute being raised by the workmen with their employer cannot become an indu strial dispute.

#45. The submission of the respondent No.6 that the subject matter of the pending reference being Reference Case No.7/2010 and the impugned reference are identical does not appeal to the Court. In the former, the issue is validit y of the action of the management in stopping deduction on account of membership subscription from the wages of the workmen whereas in the impugned reference, t he issue is verification of the membership of the two unions which in any case, they are statutorily required to maintain and furnish to various authorities und er different enactments. The two issues therefore cannot be said to be identical .

#46. In view of the above discussion, this Court is of the considered opinion that the impugned reference is not maintainable and that the State Gove rnment committed an error in issuing the notification dated 02-06-2012. As the r eference itself has been held to be not maintainable, independent scrutiny of th e order of the Industrial Tribunal dated 18-06-2012 is considered not necessary. Accordingly, the impugned notification dated 02-06-2012 and order dated 18-06-2 012 are hereby set aside and quashed. Regarding the prayer of the petitioner to direct the State to pr 47. ovide necessary assistance to the management to carry out membership verificatio n of respondent Nos.6 and 7, this Court is not inclined to issue any such direct ion as it is an internal matter of the petitioners.

#49. Writ petition is allowed to the extent indicated above. However, there will be no order as to cost.