High Court · 2008

In the High Court of Judicature at MadrasDated: 31.01.2008Coram:The Honourable Mr.Justice ELIPE DHARMA RAOandThe Honourable Ms.Justice K.SUGUNAWrit Appeal No.583 of 2000Tamilnadu Civil Supplies CorporationPirivu Anna Thozhir Sangam,rep.byits State Secretary Mr.Sooriya Achari,No.42, Thambusamy Road,Kilpauk, Chennai-600 010...Appellant/Respondent(Appellant 's name is substitutedas per order of the Court dated31.01.2008 in WAMP.No.8007 of 2004)..vs..1. Tamilnadu Civil Supplies Corporation, Employees Union (affiliated to Labour Progressive Federation) rep.by its General Secretary, Mr.M.Pechimuthu, 42, Thambuswamy Road, Kilpauk, Chennai-600 010.2. The Management of Tamilnadu, Civil Supplies Corporation Limited, rep.by its Chairman-cum- Managing Director, 42, Thambuswamy Road, Kilpauk, Chennai-600 010.3. G.Viswanathan, Minister for Food and Civil Supplies, Govt.of Tamil Nadu, Fort St.George, Chennai-9...Respondents/Respondent https://hcservices.ecourts.gov.in/hcservices/ Writ Appeal filed under Clause 15 of the Letters Patent,against the Order passed in W.P.No.7054 of 1992 dated 25.11.1998under Article 226 of the Constitution of India to issue orders,directions or writs, in particular, a writ of certiorari calling forthe records of the first respondent in connection with theproceedings and issued in No. 03/80883/91, dt. 8.5.1992 and quash thesaid proceedings and issue such further or other orders directionsFor Appellant : Mr.D.Bharatha ChakravarthyFor Respondents : Mr.V.Prakash, Senior Counsel for Mr.M.Ramamoorthy for R1 Mr.S.Ramasamy, AAG., assisted by Mr.V.Selvanayagam for R2JUDGMENT(Judgment of the Court was delivered by ELIPE DHARMA RAO,J.,)The above Writ Appeal is directed against the Order of thelearned single Judge dated 25.11.1998 made in W.P.No.7054 of 1992.2. In the writ petition, it is stated that the petitioner unionwas registered in the year 1976 and even though the State Evaluationand Implementation Committee, after evaluating the strength ofvarious Unions in the 1st respondent Corporation, recommended that thepetitioner Union be recognised, it was withdrawn in view of certainobjections by other Unions. Subsequently, the said Committee in themeeting held on 22.12.1988 recommended recognition of the petitionerUnion and the 1st respondent Corporation conferred recognition to thepetitioner Union vide Proceedings dated 25.01.1989. On coming to knowthe activities of the 2nd respondent to cancel the recognition givento the petitioner Union, it filed W.P.No.18349 of 1991 to protectthe petitioner Union's recognition and on 28.04.1992, the learnedJudge confirmed the injunction already granted; but did not grant anyrelief with regard to non-recognition of any other trade Union.Against the order, the petitioner Union filed an appeal and duringthe pendency of the appeal, the 1st respondent granted recognition tothe 2nd respondent vide Proceedings dated 08.05.1992. Challenging thesame, the writ petition has been filed.3. The learned single Judge, after hearing all the parties, gavea direction to the 1st respondent to follow the principles laid downby the decision of the Apex Court in FOOD CORPORATION OF INDIA STAFFUNION ..vs.. FOOD CORPORATION OF INDIA reported in 1995(1) LLN 783and also the criteria for recognition of union laid down in the Codeof Discipline at the 15th Session of Indian Labour Conference in the https://hcservices.ecourts.gov.in/hcservices/ grant of recognition of unions by order dated 25.11.1998. Aggrievedby the same, the second respondent has preferred the present appeal.4. Heard Mr.Bharatha Chakravarthy, learned counsel appearing forthe appellant, Mr.Prakash, learned senior counsel appearing for the1st respondent and Mr.S.Ramasamy, learned Additional Advocate Generalappearing for the 2nd respondent. 5. After hearing the arguments at length, all the learnedcounsel have submitted that they are affected with the operativeportion of the judgment of the learned single Judge, which reads asfollows:"Considering the grievance of the petitioner and the reliefprayed for in the above writ petitions, I am of the opinionthat it is suffix to direct the first respondent herein, infuture, to follow the principles laid down by the decision ofthe Apex Court in FOOD CORPORATION OF INDIA STAFF UNION ..vs.. FOOD CORPORATION OF INDIA reported in 1995(1) LLN 783,referred to above, and also the criteria for recognition ofunion laid down in the Code of Discipline at the 15th Sessionof Indian Labour Conference, strictly, in the grant ofrecognition of unions in the case of the petitioner, or inthe case of the second respondent, or any other union afresh,uniformly, and in any event, later than six months from thedate of receipt of this order, and till then, the status quoshall be maintained". 6. The learned Additional Advocate General appearing for the 2ndrespondent herein submitted that the check off system is prevailingin the State from 1994, and therefore, the Corporation may be allowedto follow the same instead of secret ballot system. 7. On the other hand, the learned senior counsel Mr.Prakashappearing for the first respondent/writ petitioner submitted that theSupreme Court, in its judgment 1995(1) LLN 783(FCI's case (citedsupra), has expressed its opinion as follows:"The 'check off' system which once prevailed in this domainhas lost its appeals, and so, efforts are to find out whichother system can foot the bill. The method of secret ballotis being gradually accepted. All concerned would, however,like to see that this method is so adopted and adjusted thatit reflects the correct position as regards membership ofthe different trade unions operating in one and the sameindustry, establishment or undertaking".8. The learned senior counsel further submitted that the SupremeCourt perused the instruction No.25 of 1980, dated 18th December 1980in the Memorandum issued by the Chief Labour Commissioner, Ministry https://hcservices.ecourts.gov.in/hcservices/ of Labour, Government of India and following the above instructionand after getting consent of both parties, the Supreme Court has laidnorms and procedures for assessing the representative character ofTrade unions by the 'secret ballot system'. The norms fixed by theHon'ble Supreme Court, in the above judgment, are as follows:(i) As agreed to by the parties the relative strength ofall the eligible unions by way of secret ballot be determinedunder the overall supervision of the Chief Labour Commissioner(Central).(ii) The Chief Labour Commissioner(Central) will notifythe Returning Officer who shall conduct the election with theassistance of the Food Corporation of India. The ReturningOfficer shall be an officer of the Government of India,Ministry of Labour.(iii) The Chief Labour Commissioner(Central) shall fixthe month of election while the actual date/dates of electionshall be fixed by the Returning Officer.(iv) The Returning Officer shall require the FoodCorporation of India to furnish sufficient number of copies ofthe lists of all the employees/workers (categories III and IV)governed by the Food Corporation of India(Staff) Regulations,1971, borne on the rolls of the Food Corporation as on thedate indicated by the Chief Labour Commissioner(Central). Thelist shall be prepared in the pro forma prescribed by theChief Labour Commissioner (Central). The said list shallconstitute the voters list.(v) The food Corporation of India shall display thevoters list on the notice board and other conspicuous placesand shall also supply copies thereof to each of the unions forraising objections, if any. The unions will file theobjections to the Returning officer within the stipulatedperiod and the decision of the 'Returning Officer' shall befinal.(vi) The Food Corporation of India shall made necessaryarrangement to:(a) give wide publicity to the date/dates ofelection by informing the unions and by affixing noticeson the notice-board and also at other conspicuous placesfor the information of all the workers;(b) print requisite number of ballot papers in thepro forma prescribed by the Chief Labour Commissioner(Central) incorporating therein the names of all the https://hcservices.ecourts.gov.in/hcservices/ participating unions in alphabetical order afterascertaining different symbols of respective unions;(c) the ballot papers would be prepared in the proforma prescribed by the Chief Labour Commissioner(Central) in Hindi/English and the concerned regionallanguage;(d) set up requisite number of polling stations andbooths near the premises where the workers normallywork; and(e) provide ballot boxes with requisite stationery,boards, sealing wax etc.(vii) The Returning Officer shall nominate PresidingOfficer for each of the polling station/booth with requisitenumber of polling assistants to conduct the election in animpartial manner. The Presiding Officers and the pollingassistants may be selected by the Returning officer fromamongst the officers of the Food Corporation of India.(viii) The election schedule indicating the dates forfiling of nominations, scrutiny of nominations papers,withdrawal of nominations, polling, counting of votes and thedeclaration of results, shall be prepared and notified by theReturning Officer in consultation with the Food Corporation ofIndia. The election schedule shall be notified by theReturning Officer well in advance and at least one month's timeshall be allowed to the contesting unions for canvassing beforethe date of filing the nominations.(ix) To be eligible for participating in the election, theunions must have valid registration under the Trade Unions Act,1926, for one year with an existing valid registration on thefirst day of filling of nomination.(x) The Presiding Officer shall allow only onerepresentative to be present at each polling station/booth asobserver.(xi) At the time of polling, the polling assistant willfirst score out the name of the employee/workman who comes forvoting, from the master copy of the voters list and advise himthereafter to procure the secret ballot paper from thePresiding officer.(xii) The Presiding Officer will hand over the ballotpaper to the workman/employee concerned after affixing hissignatures thereon. The signatures of the workman/employeecasting the vote shall also be obtained on the counterfoil of https://hcservices.ecourts.gov.in/hcservices/ the ballot paper. He will ensure that the ballot paper is putinside the box in his presence after the voter is allowed tomark on the symbol of the candidate with the inked rubber stampin camera. No employee/workman shall be allowed to cast hisvote unless he produces his valid identity card before thePresiding Officer concerned. In the event of non-production ofidentity card due to any reason, the voter may bring in anauthorisation letter from his controlling officer certifyingthat the voter is the bona fide employee of the FoodCorporation of India.(xiii) After the close of the polling, the PresidingOfficer shall furnish detailed ballot paper account in the proforma prescribed by the Chief Labour Commissioner(Central)indicating total ballot papers received, ballot papers used,unused ballot papers available, etc., to the Returning Officer.(xiv) After the close of the polling, the ballot boxeswill be opened and counted by the Returning Officer or hisrepresentative in the presence of the representatives of eachof the unions. All votes which are marked more than once,spoiled, cancelled or damaged etc., will not be taken intoaccount as valid votes but a separate account will be keptthereof.(xv) The contesting unions through their representativespresent at the counting place may be allowed to fileapplications for recounting of votes to the Returning officer.The request would be considered by the Returning Officer and ina given case if he is satisfied that there is reason to do sohe may permit recounting. However, no application forrecounting shall be entertained after the results of the votesare declared.(xvi) The result of voting shall be compiled on the basisof valid votes polled in favour of each union in the pro formaprescribed by the Chief Labour Commissioner(Central) andsignatures obtained thereon from the representatives of all theunions concerned as a proof of counting having been done intheir presence.(xvii) After declaring the results on the basis of thevotes polled in favour of each union by the Returning Officer,he will send a report of his findings to the Chief LabourCommissioner(Central).(xviii) The union/unions obtaining the highest number ofvotes in the process of election shall be given recognition bythe Food Corporation of India for a period of five years fromthe date of the conferment of the recognition. https://hcservices.ecourts.gov.in/hcservices/ (xix) It would be open to the contesting unions to objectto the result of the election or any illegality or materialirregularity which might have been committed during theelection. Before the Returning Officer such objection can onlybe raised after the election is over. The objection shall beheard by the Chief Labour Commissioner(Central) and dispose ofwithin 30 days of the filing of the same. The decision of theChief Labour Commissioner(Central) shall be final subject tochallenge before a competent Court, if permitted under law". 9. On the other hand, the learned counsel appearing for theappellant submitted that the learned Judge mentioned the abovesaidone union to recognise, which is not correct as per the Supreme Courtjudgment. Therefore, the order has to be set aside to that extent. 10. It is the further case of the learned Additional AdvocateGeneral that if the secret ballot system is adopted, it will causelot of expenditure to the State. Therefore, it is better to followthe 'check off system'.11. We are unable to accept the same since in our democraticSociety, the only way for assessment of representative character ofthe Trade unions is the secret ballot system as has been observed bythe Hon'ble Supreme Court. Moreover, the period for recognition ofthe trade unions in the writ petition is over long back. Therefore,after considering the facts and circumstances of the case, weconsider it appropriate to give a direction to the 1st respondentCorporation to take appropriate steps to conduct elections to assessthe representative character of the unions within a period of sixmonths, following the guidelines issued by the Supreme Court in theFCI's case (cited supra).Writ appeal is disposed of. However, there will be no order asto costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gl https://hcservices.ecourts.gov.in/hcservices/ ToThe Chairman-cum-Managing Director,The Management of Tamilnadu,Civil Supplies Corporation Limited,42, Thambuswamy Road,Kilpauk, Chennai-600 010.+ one cc to M/s. Bharathe chakravarthy, Advocate,SR.4740+ one cc to M/s. G. Ramapriya, Advocate, SR.4596+ one cc to M/s. V. Selvarangan, Advocate, SR.4596+ one cc to The Government Pleader, SR.4705AVM(CO)RP 28.02.08Writ Appeal No.583 of 2000