The Honourable Mr.H.L.GOKHALE, CHIEF JUSTICEandThe Honourable Mr v. Government of Tamil Nadu

6. MRF Arakonam Workers Welfare Union (Regn.No.1268/VLR), No.4, Shastri Nagar, Ichiputhur, Arakonam Taluk. … Respondents/RespondentsPetition filed under Article 226 of the Constitution of Indiaseeking a writ of mandamus to direct the respondents 1 to 3 toforthwith take such appropriate steps as are necessary to ensure theimplementation of the recommendations contained in the 348th Report ofthe International Labour Organisation’s Governing Body’s Committee onFreedom of Association in Case No.2512 (India), in particular,forthwith ensure recognition of the petitioner union by respondents 4and 5 and issue such further or other orders or directions as thisHon’ble Court may deem fit and proper in the facts and circumstancesof the case.ANDAppeal filed under Clause 15 of the Letters Patent against the orderpassed in V.M.P.No.1/09 in M.P.No.1/08 in W.P.No.17991/2008 dated05.05.2009.For Petitioner/Appellant: Mr.V.Prakash, Senior Counsel with Ms.RamapriyaFor Respondent 1: Mr.Raja Kalifulla, Govt. Pleader(in both)For Respondents2 & 3: Mr.C.S.Sundar Raj, ACGSC(in both)For Respondents4 & 5: Mr.Sanjay Mohan, Senior Counsel for M/s.S.Ramasubramaniam Associates(in both WA.& WP.)For Respondent 6: Mr.R.Muthukumarasamy,Senior Counsel with Mr.K.M.Ramesh(in both)J U D G M E N TTHE HON’BLE THE CHIEF JUSTICEThis writ petition raises an important question with respect tothe procedure for recognition of a trade union as the representativebody of workmen in an industry in the absence of a specific statutoryprovision of law.2. MRF Limited (Madras Rubber Factory) is a leading Tyremanufacturing company situated in Ichiputhur Village of ArakonamTaluk in Vellore District of Tamil Nadu. It is having its CorporateOffice in Chennai. It employs around 1500 workmen in different https://hcservices.ecourts.gov.in/hcservices/ capacities, and it is one of the major industrial units situated inthe vicinity of Chennai. 3. The appellant/petitioner is a Registered Trade Union, whichclaims to represent majority of the workmen functioning in thisindustry. Respondent No.6 is another Trade Union, which also claimsto have majority membership. Respondent No.4 is the Management of MRFLimited and Respondent No.5 is its Plant Manager. Respondents 4 and 5are stated to be entertaining Respondent No.6 and not the petitionerfor the purposes of negotiations and settlement. 4. The Petitioner Union was registered under the provisions ofthe Trade Unions Act, 1926 on 29th December, 2003, and claims to berepresenting the causes of the workmen. It is the case of thePetitioner Union that Respondent No.4-Management has not been givingfair wages to the workmen, that it has been paying piece rate wagesand is indulging in Unfair Labour Practices and acts ofdiscrimination against the Petitioner Union and its office bearers. 5. In February, 2004, the Petitioner Union wrote to Respondents4 & 5 that since it is representing nearly 898 of the 1029 permanentworkmen of the company, it be recognized as the representative union,and another Union, which was being entertained by the Management atthat time namely, MRF Cycle Tyre Unit Employees Association, be notpermitted the facility of deduction of membership fees from the wagesof the employees. The Management did not entertain that request, nordid it recognize the Petitioner Union. Agitated over the same, thepetitioner filed a Civil Suit before this Court for a declarationthat it is the majority union, but the said suit was not entertainedon the ground that the High Court did not have the territorialjurisdiction to entertain the suit. 6. On 17th May, 2004, the Petitioner Union wrote to theCommissioner of Labour, Chennai seeking determination of its majorityon the basis of a secret ballot. But the Commissioner of Labour wroteback on 30th June, 2004 stating that there was no law providing forany such determination. The Petitioner Union raised a charter ofdemands on 25th November, 2004. Meanwhile, Respondent No.4 enteredinto a settlement with the above referred MRF Cycle Tyre UnitEmployees Union on 22nd December, 2004. The Petitioner Union raised anIndustrial Dispute before the Deputy Commissioner of Labourquestioning the validity of this settlement. The Petitioner Unionalso expressed its willingness to prove its majority by a secretballot. This submission was made during the conciliation proceedings.7. In May, 2006, Respondent No.4-Management announced thatmajority Union will be decided by a secret ballot. It is, however,the case of the Petitioner Union that though its representatives gotelected by a huge margin, it was not to the liking of the Managementand hence it asked the newly elected office bearers to resign. It isat that stage that Respondent No.6-Union has been registered in July,2006 and it has been given the facility of deduction of membershipfees from the wages of the workmen. https://hcservices.ecourts.gov.in/hcservices/

8. It is the case of the Petitioner Union that since it had noother remedy, it lodged a complaint before the Committee on Freedomof Association, which is a Committee of the International LabourOrganisation’s Governing Body (in short ‘ILO’). The complaint wasregistered as Case No. 2512(India). In view of the complaint beingtaken up by the ILO, the Labour Officer, Vellore was directed by theGovernment of Tamil Nadu to enquire into the complaint and submit areport. The Labour Officer Mr.Dharmaseelan gave a report dated27th/28th March, 2007 accepting the claim of the Petitioner Union thatit was the majority union. The Petitioner Union got a copy thereofonly after applying under the Right to Information Act, 2005. 9. In November, 2007, the 348th Report of the Committee onFreedom of Association in respect of the above Case No.2512 (India)was published. In paragraph-904 of the said report, the Committeestated that the determination of the most representative trade unionby a secret ballot was not only an accepted one, but also a desirableway to choose a collective bargaining agent. The Committee alsostated that it had found that the Petitioner Union has more than 70%membership of the total permanent workers, and it recommended theGovernment to take appropriate measures in that behalf. TheCommissioner of Labour, Chennai, however, wrote to the PetitionerUnion on 18th April, 2008 stating once again that there was nospecific law for recognizing the Trade Union in the State of TamilNadu, though the Petitioner Union could submit a petition to theState Evaluation and Implementation Committee. That led to the filingof Writ Petition No.17991/2008 by the Petitioner Union seeking adirection to implement the recommendation of the Committee on Freedomof Association in Case No.2152 (India). The Petitioner Union alsofiled M.P.No.1/2008 to restrain Respondent No.4 from entering intoany settlement with Respondent No.6-Union. 10. During the pendency of the writ petition, an interiminjunction was granted 28th July, 2008. The Petitioner Union took outanother miscellaneous petition viz., M.P.No.2/2008 on 22nd October,2008 to restrain Respondent No.4-Management from making any deductionfrom the wages of its members in favour of Respondent No.6. It is thecase of the Petitioner Union that the Committee on Freedom ofAssociation in its 351st Report, which was published in November,2008, reiterated that the Petitioner Union should not be driven totake recourse to the procedure suggested by the State Government asprescribed under the Code of Discipline for determining therepresentative status, as the said procedure is only recommendatory.This code is evolved and ratified by the Indian Labour Conference inits 16th Conference held in May, 2008, which came into force from 1stJune, 1958. The conference consists of all Central Employers’ andWorkers’ Organisation and Government representatives and it providedfor the recognition of trade union on the basis of verification ofthe record of their membership. The Committee once again reiteratedits recommendation for recognizing the Petitioner Union. On 15thApril, 2009, Respondent No.6-Union filed V.M.P.No.1/09 to vacate theinjunction earlier granted on 28th July, 2008 in M.P.No.1 of 2008. A https://hcservices.ecourts.gov.in/hcservices/ learned single Judge who heard the matter vacated the order ofinterim injunction on 15th May, 2009. Respondent No.4-Management isreported to have imposed a lock out thereafter which continued till27th May, 2009. The aforesaid interim order of vacating the injunctionled to the filing of the present writ appeal in W.A.No.674 of 2009. 11. The Writ Appeal came up before a Division Bench duringsummer vacation on 15th May, 2009, which Bench directed the parties tomaintain status quo in respect of the settlement dated 9th May, 2009.Thereafter, the matter came up before this Bench on 9th June, 2009.Learned senior counsel appearing for Respondent No.4 submitted thataround 765 workmen had signed that settlement prior to the grant oforder of status quo and that some 115 more workers were alsoagreeable to take the benefits of that settlement. This was disputedby the learned senior counsel appearing for the petitioner/appellant.12. It is the case of the appellant that in the meanwhile therewas further agitation by the workmen and there was laticharge on theworkers on 20th May, 2009, whereas it is the case of the Managementthat the workmen have subsequently taken law into their hands anddamaged the Corporate Office. On this background, it was thought fitthat the writ petition itself be heard and decided finally along withthe writ appeal. Accordingly, with the consent of the parties, thewrit petition was taken up before this Division Bench and argumentsof the counsel for all the parties were heard.13. Learned counsel for Respondent Nos.4 & 5 has filed writtenarguments on 4th August, 2009. The learned counsel for the petitionerhas filed her written arguments on 6th August, 2009, and the counselfor the 6th respondent has filed his written arguments on 11th August,2009. 14. Factual Scenario -The Petitioner Union is contending that the service conditionsof the workmen in the Respondent 4 – Management are not satisfactory,considering the financial strength of the company. It is contendedthat any time an attempt is made to seek improvement in their serviceconditions by a genuinely representative trade union, the Managementcomes down on the representatives of the workmen some way or theother. It is submitted that the Management sees to it that no suchtrade union gets any hold, and is reluctant to negotiate with anysuch trade union, leave aside recognizing it as a representative ofthe workmen. It is submitted in this behalf that when an attempt isthis behalf was made earlier, another union namely, MRF Cycle TyreUnit Employees Union was supported by the Management, and now thatthe Petitioner Union is representing the majority of the workmen,Respondent 4-Management is supporting the Respondent 6-Union. It istheir case that since the Labour Department of the State Governmentwas not supportive; the Petitioner Union was constrained to lodge acomplaint to the Committee on Freedom of Association of the ILO. TheCommittee has given two reports, firstly the 348th Report in November2007 and thereafter, the 351st Report in November, 2008. The ILO has https://hcservices.ecourts.gov.in/hcservices/ collected the information from Mr.Dharmaseelan, Labour Officer,Vellore, who has found that more 70% of the total permanent workmenwere members of the Petitioner Union. It is observed by theCommittee in its 348th Report that the determination of the mostrepresentative trade union by a secret ballot was not only anaccepted one, but also a desirable way of choosing a collectivebargaining agent. After the report of Mr.Dharmaseelan, in its 351stReport, the Committee has observed that the Petitioner Union shouldnot be driven to take recourse to the procedure prescribed under theCode of Discipline, since that procedure is recommendatory in nature.15. As against this submission of the Petitioner Union, the 6thRespondent-Union submits that out of some 1400 confirmed workmen ofthe Company, 1249 are its members and that it is a majority union,which was recognized by the Management, immediately after it wasformed, as the sole bargaining agent. It is submitted that after theformation of the 6th respondent-union in the year 2006, the workmenwho joined this Union have given their individual letters in writingto the 5th respondent-management authorizing it to deduct theirsubscription from their monthly wages and this Union is enjoying whatis called check-off facility, which will prove its membershipstrength. It was also contended that the bonus and all other issuesof the workmen are amicably settled with the Management. 16. The previous agreement, governing the service conditions, isstated to have expired on 31st December, 2008 and the 6th Respondent-Union has entered into a settlement with the Management on 9th May,2009. This Union contends that 765 workmen have given individualletters agreeing to abide by the terms of the settlement dated 9thMay, 2009, and the Management has extended the benefit of settlementto them. The Management has, however not extended it to some 157workmen in view of the order of status quo granted by the DivisionBench of this Court, though they were ready and willing to take thebenefits. The settlement has been signed after the interim ordergranted earlier by the learned single Judge was vacated by theimpugned order dated 5th May, 2009. The 6th respondent is relying uponthe letters given by the workmen, which are attested by a Notary, asagainst which the Petitioner Union is very much disputing theauthenticity of those notarised letters. This Union further statesthat though the Petitioner Union called for a strike, some 900workmen out of the 1400 workmen reported for work every day. It issubmitted that this can also be seen from the punching on the cardsmade by the workmen when they enter the factory as soon as the shiftstarts. This Union denies the allegation that the signatures of theworkmen are not genuine. This Union submits that the Settlement Deeddated 9th May, 2009 is a settlement under Section 18(1) of theIndustrial Disputes Act, 1947 (in short ‘the Act’), which is bindingonly on the parties to the settlement. In case the Petitioner Unionis not satisfied with it, it is open to the Petitioner Union tochallenge the same under the Act. This Union submits that thePetitioner Union is trying to create a rift among the workmen with aview to gain foot hold in the company. This Union denies that it is apuppet union put up by the Management. https://hcservices.ecourts.gov.in/hcservices/

17. As far as the Management is concerned, it denies theallegation that it is harassing the workmen, who join the Union notliked by the Management. According to the Management, the serviceconditions of the workmen have been good and have considerablyimproved in view of the settlement of 9th May, 2009 and that majorityof them have accepted it voluntarily and if the Petitioner Union isunhappy about it nothing prevents it from challenging the settlementby raising a dispute under the Industrial Disputes Act. It issubmitted that it is the discretion of the Management to recognize aUnion as it thinks proper and it will recognize the Union whichfosters industrial peace and not the Petitioner Union which isdisturbing the industrial peace in the factory. The Management hasdrawn our attention to the incidents of strike, agitations andviolence resulting into loss of production on number of occasions. 18. Legal Submissions:The Petitioner Union submits that the right to form associationis protected under Article 19(1)(c) of the Constitution of India andto establish employer-sponsored trade unions of workmen isspecifically mentioned as an Unfair Labour Practice under Item-3 ofthe fifth Schedule of the Act. The various Unfair Labour Practices onthe part of the employers and associations of employers mentioned inthe first part of the fifth schedule of the Act are clearlydeprecated under the Act and Section 25-T of the Act prohibits UnfairLabour Practice and a penal provision is made under Section 25-U ofthe Act. Learned senior counsel for the Petitioner Union has drawnour attention to the judgment of the Apex Court in Visaka v. State ofRajasthan, 1997 (6) SCC 241 to submit that in judicial constructionregard must be had to international conventions and norms. Similar isthe view in Apparel Export Promotion Council v. A.K.Chopra, AIR 1999SC 625 (see para-28 of the judgment). 19. Article 51-c of the Constitution requires the State tofoster respect for international law and treaty obligations.International norms with respect to recognition of trade union havebeen stipulated in paragraph-904 of the 348th Report of the Committee.One basic norm is that the employer should recognize an organization,which is representative of the workers for the purpose of collectivebargaining, and the organization to be recognized for that purposemust satisfy the two criteria, namely, it must be representative andindependent. The report also lays down the norms for thedetermination of the most representative trade union by a secretballot is not only an acceptable one, but a desirable way to ensurethe workers’ rights to choose their organization. 20. As against this submission of the Petitioner Union, theManagement as well as the 6th respondent submits that the Managementcannot be forced to recognize any particular Union and in fact, it isa matter of discretion for the Management to recognize any particularUnion, more particularly when there is no statutory provision. Insupport of this submission, the respondents relied upon the dicta of https://hcservices.ecourts.gov.in/hcservices/ the Apex Court in Bal Ram Bali v. Union of India reported in 2007 (6)SCC 805 wherein it has been held that no such prayer should begranted which would amount to issuing directions to the StateGovernment to frame a law as the same is not within the purview ofthe Courts. 21. As far as the State Government is concerned, in the counterfiled by one S.Arumugam, affirmed on 19th August, 2008, it is statedin para-38 as follows: -“More over there is no law for Recognition of atrade union in the State of Tamil Nadu. Withreference to the Trade Union, claiming to be asole bargaining agent, a procedure has been laiddown as per the Code of Discipline and theprocess emanates by submitting a petition beforethe State Evaluation and ImplementationCommittee. The Petitioner Union has to undergothe procedure laid down as per the Code ofDiscipline to claim the status of solerepresentative of workers in collectivebargaining.” 22. We have considered the factual situation, as well as thesubmission of the parties before us. MRF is a major industrial unitsituated on the outskirts of Chennai city, which has around 1400permanent workmen, and further temporary work force as required fromtime to time. It is one of the oldest companies in the vicinity ofChennai. Although it is contended by the Management that the serviceconditions are good and that it cannot give anything more than whatit has agreed in the settlement of 9th May, 2009, the fact remainsthat there is a large section of workmen which appears to bedissatisfied with the terms of the settlement. The genuineness of thenotary letters tendered by the 6th respondent is seriously disputed bythe Petitioner Union. It is another matter that if the PetitionerUnion is dissatisfied with the terms of the settlement, its remedy isto terminate the same and invoke the machinery provided under theAct. At the same time, the fact remains that there has beencontinuous strife in this company leading to agitations by theworkmen resulting in production coming to a halt. Either a goodsection of the workmen have gone on strike or the Management hasdeclared lock out and the Management has been initiating actionagainst the workmen whom the Petitioner Union claims to be thegenuine representative of the workmen. Much of the problem appears tobe because of the workmen not having a truly representative andindependent union to address their cause. As set out earlier oneattempt was made in this behalf in May, 2006 by holding a secretballot, but since the representatives elected were not to the likingof the Management, they were asked to resign and the sixth respondenthas been given the facility of deduction of membership fees from thewages of the workmen. https://hcservices.ecourts.gov.in/hcservices/ Desirability of having a representative union recognized:-23. The desirability to have a truly independent andrepresentative union of workmen to represent their cause cannot belost sight off. A Management may think that the leadership of aparticular trade union is militant, yet even such a union when itobtains a recognised status, it has to act within the four corners oflaw and discipline. Where the number of workmen is very large, it isalso in the interest of the Management to have a truly representativecollective bargaining agent to represent the workmen so that theManagement can discuss with it the problems governing the productionand industrial peace, and the decisions arrived at will have to beaccepted by all the workmen. This being so, the question as to whoshould be the representative of the workmen is an aspect which has tobe decided by the workmen themselves. It cannot be left to theManagement that it will recognize a particular Union which itconsiders to be representative of the workmen. The Trade Unions Act,1926, which is an Act to provide for the registration of Trade Union,is there on the statute book for the last over 80 years. It is nolonger permissible nor possible for any management to disregard atrade union registered under the Act, and having a large following.If it does so, it would be at its own peril. 24. The fact that there should be a recognized union of theworkmen can clearly be seen from various statutory provisions. Thus,as noted earlier, Article 19(1)(c) of the Constitution gives theright to the workmen to form association. The Industrial DisputesAct, 1947 has now introduced the concept of Unfair Labour Practiceand Section 25-T of the Act prohibits Unfair Labour Practice on thepart of the employers, workmen and also the trade union. Section 25-Uof the Act provides that any person who commits any unfair labourpractice shall be punishable with imprisonment for a term which mayextend to six months or with fine which may extend to one thousandrupees or with both. 25. Unfair Labour Practice is defined in Section 2(ra) of theAct to mean any of the practices specified in the fifth schedule. Thefirst part of the fifth schedule enumerates unfair labour practice onthe part of the employers and the trade union of the employers. Thefirst four items of the first part of unfair labour practice providesas follows: -1. To interfere with, restrain from, or coerce,workmen in the exercise of their right toorganize, form, join or assist a trade union orto engage in concerted activities for the purposeof collective bargaining or other mutual aid orprotection, that is to say-(a)threatening workmen with discharge or dismissal,if they join a trade union,(b)threatening a lock-out or closure, if a tradeunion is organized, https://hcservices.ecourts.gov.in/hcservices/ (c)granting wage increase to workmen at crucialperiods of trade union organization, with a viewto undermining the efforts of the trade unionorganization.2.To dominate, interfere with or contributesupport, financial or otherwise, to any tradeunion, that is to say--(a)an employer taking an active interest inorganizing a trade union of his workmen; and(b)an employer showing partiality or granting favourto one of several trade unions attempting toorganize his workmen or to its members, wheresuch a trade union is not a recognized tradeunion. 3.To establish employer sponsored trade unions ofworkmen.4.To encourage, or discourage membership in anytrade union by discriminating against anyworkman, that is to say—(a)discharging or punishing a workman, because heurged other workman to join or organize a tradeunion,(b)discharging or dismissing a workman for takingpart in any strike (not being a strike which isdeemed to be an illegal strike under this Act),(c)changing seniority rating of workmen because oftrade union activities,(d)refusing to promote workmen to higher posts onaccount of their trade union activities,(e)giving unmerited promotions to certain workmenwith a view to creating discord amongst otherworkmen, or to undermine the strength of theirtrade union,(f)discharging office-bearers or active members ofthe trade union on account of their trade unionactivities.Item-15 of this Schedule is also relevant in this behalf, whichprovides that the following practice is an unfair labour practice:-“15. To refuse to bargain collectively, in goodfaith with the recognized trade union.”26. From the above items, it is clear that a Management is notexpected to interfere with the rights of the workmen to organizethemselves into a trade union. The Management is also not supposed todominate, interfere or to contribute support, financial or otherwise,to any trade union. The Management is not expected to establishemployer sponsored trade unions of workmen, and it is also notsupposed to encourage or discourage membership to any union by takingthe various steps which are mentioned in item-1. Item 15, which ismentioned above, clearly speaks of a recognized trade union. Itclearly lays down that to refuse to bargain collectively even in good https://hcservices.ecourts.gov.in/hcservices/ faith with a recognized trade union is an unfair labour practice. Itis clear that there is a concept of a recognized trade union underthe Act. In the instant case, it is the stand of respondents 4 and 5that it will decide as to who should be the representative of thetrade union of the workmen and they will discuss the demands of theworkmen only with them. Obviously this approach is contrary to theletter and spirit of the statute. 27. Now, if we look into the first four items of this schedule,it is very clear that the Management is not expected to interferewith the right of the workmen to organize themselves into a tradeunion in any of the manners mentioned therein or also to establish anemployer sponsored trade union of workmen. If the Management takes astand that it will decide as to which Union is the representative ofthe union of the workmen and recognize them, obviously it will meanto interfere with the right of the workman to organize themselvesinto a particular union for the purposes of collective bargaining.All these items clearly imply that under the Act what is contemplatedis an independent and truly representative collective bargainingagent of the workmen, which is to be decided by the workmen and suchagent has to be recognized as the representative of the union of theworkmen and the Management cannot refuse to bargain collectively evenin good faith with such trade union. Thus, the idea of a trade uniondecided by the workmen as their collective bargaining agent isclearly writ large on the fifth schedule. Any other interpretation ofthis item would be clearly to defeat the purpose in introducing thisschedule, which has been introduced with effect from 21st August, 1984by the Amendment Act 46/1982. Looked at from this point of view, itis the right of workmen to decide which Union should be theirrepresentative and once they take that decision by a procedureaccepted by law, the Management cannot refuse to recognize it. Method of recognizing a representative Union:28. The question then to be considered, however, is with respectto the method by which the representative union is to be determinedso as to grant recognition. The two methods, which are presentlyavailable, are either on the basis of a ballot, which is recommendedby the aforesaid committee on Freedom of Associations of the ILO orthe method of verification of membership, which is accepted in theearlier referred to Code of Discipline. Ballot is not foreign to theIndustrial Disputes Act either. The representative of the workmen onthe Works Committee under Section 3 of the Act are to be elected inthe manner provided under Part VII of the Industrial Disputes(Central) Rules, 1951. This problem comes up in the present caseconcerning this particular company, which is situated in the State ofTamil Nadu, since there is no specific provision making a particularmethod to be mandatory. It is due to this reason that when the matterwas heard before this Bench, we appealed to all the parties before usthrough their counsel to agree for one of the two methods. As far asthe Petitioner Union is concerned, it undoubtedly showed itspreference for a ballot, which was opposed by the sixth respondent-union as well as by the Management. As far as the other method https://hcservices.ecourts.gov.in/hcservices/ namely, that of verification of membership is concerned, withoutprejudice to its original insistence on ballot, the Petitioner Unionappeared to be agreeable, provided the Management and the sixthrespondent also agreed thereto. Strangely enough the sixthrespondent-union has refused to accept this method as well, though itis claiming to have a majority following in the Respondent 4-Company.The State Government, of course, indicated its preference forverification method, inasmuch as it has been accepted by theConference of the Employers’ Associations and Trade Unions and theGovernment in the Tripartite Conference held way back in the year1958, and which method is being followed in a number of companies.The submission of Respondent 4-Management was that it is for thecompany to decide as to whom it will recognize as the representativeof the trade union and in the absence of any specific statutoryprovision; it cannot be forced to recognize any particular union asthe representative of the workmen. On this background, it will bedesirable to look to the legal position in his behalf. 29. The question is as to how this collective bargaining agentis to be decided. The Petitioner Union has undoubtedly preferred tothe norms which are accepted by the Committee of ILO. The PetitionerUnion points out that it has been a practice to lodge such complaintsto the aforesaid Committee and it has pointed out that some 66complaints have so far been referred by the Unions in India to thisCommittee, which include the complaint against the companies likeHindustan Lever Limited, being Case No.1651 (India) and against FortAguada Beach Resort, a subsidiary of Taj Hotel Group, being CaseNo.1890 (India). This is only to point out that the forum of thisCommittee has been used as against private companies in India in thepast. 30. As far as the jurisdiction of this Committee is concerned,it has been submitted on behalf of respondents 4 and 5 that althoughIndia is a member of ILO, there is no convention of the GeneralAssembly of the ILO, which deals with the manner of recognistion oftrade unions. It is submitted that the suggestions of the Committeeis merely recommendatory in nature and does not have any bindingforce, and this Court cannot enforce those recommendations by issuingany writ or direction. It is submitted that this would amount tolegislation by the Court, which is criticized by the Apex Court inBal Ram Bali v. Union of India (supra). 31. As against this submission of Respondents 4 & 5, thePetitioner Union points out that Article 51(c) of the Constitutionmandates that the State shall endeavour to foster respect forinternational law and treaty obligations in the dealings of organizedpeople with one another. In Visaka v. State of Rajasthan (supra),the Court was concerned with the issue of gender equality. In theabsence of a domestic law, the Apex Court has laid down certainguidelines in this behalf, and relied upon the Convention onElimination of All Forms of Discrimination Against Women (CEDAW), towhich, ofcourse, India was a signatory. It is, however, material tonote that while referring to the requirement to foster respect for https://hcservices.ecourts.gov.in/hcservices/ international law, the Court referred to the InternationalConventions and the Norms, which is clear from paragraphs 7 & 14 ofthe aforesaid judgment. Para-14 of the judgment, which is relevantfor this purpose, reads as follows: -“The international conventions and norms are tobe read into them in the absence of enacteddomestic law occupying the field when there is noinconsistency between them. It is now an acceptedrule of judicial construction that regard must behad to international conventions and norms forconstruing domestic law when there is noinconsistency between them and there is a void inthe domestic law.”32. The Petitioner Union therefore submitted with good forcethat the preference for the method of ballot was laid down as a normin that behalf in the 348th Report of the Committee. It was pointedout in that behalf that the Labour Officer Mr.Dharmaseelan was askedto make an enquiry and he has reported that 70% of the workmen weremembers of the Petitioner Union. He has also reported that there wereacts of suppression on the part of respondents 4 and 5. ThePetitioner Union particularly emphasized the observations of theCommittee in the 348th Report, which is to the following effect: -“In order to determine whether an organizationhas the capacity to be the sole signatory tocollective agreements, two criteria should beapplied; representative ness and independence.The determination of which organizations meetthese criteria should be carried out by a bodyoffering every guarantee of independence andobjectivity.”It was, therefore, submitted on their behalf that it was aninternational norm recognized that the trade union to be solecollective bargaining agent must be representative and independent.Thereafter reference was made to para-904 where the Committee hasobserved that determination of the most representative trade union bysecret ballot is not only accepted, but also found to be a desirableway to ensure that the workers exercise their right to choose theirorganization which shall represent them in collective bargaining. ThePetitioner Union has also placed material on record to point out thatthe ILO has come out with a publication entitled “Right to CollectiveBargaining of ILO Standards and the Principles of Supervisory Bodies”in the year 2000 containing the summary of the ILO principles on theright to collective bargaining. Chapter-16, thereof, has been pressedinto service before us. The first three clauses of this chapter areas follows: -“SUMMARY OF THE ILO PRINCIPLES ON THE RIGHT TOCOLLECTIVE BARGAINING. https://hcservices.ecourts.gov.in/hcservices/ To resume the previous chapters, the standardsand principles emerging from the ILO’sConventions, Recommendations and otherinstruments on the right to collectivebargaining, and the principles set forth by theCommittee of Experts and the Committee on Freedomof Assoiation on the basis of these instruments,may be summarized as follows: -A.The right to collective bargaining is afundamental right endorsed by the members of theILO in joining the organization, which they havean obligation to respect, to promote and torealize, in good faith (ILO Declaration onFundamental Principles and Rights at Work and itsFollow-up)B.Collective bargaining is a right of employers andtheir organizations, on the one hand, andorganizations of workers, on the other hand(first-level trade unions, federations andconfederations); only in the absence of theselatter organizations may representatives of theworkers concerned conclude collective agreements.C.The right to collective bargaining should berecognized throughout the private and publicsectors and it is only the armed forces, thepolice and public servants engaged in theadministration of the State who may be excludedfrom the exercise thereof (Convention No.98)”33. The Petitioner Union has brought to our notice that in someof the States there are specific statutory provisions relating torecognition of trade unions such as in the States of Maharashtra,Gujarat and Madhya Pradesh, etc. A specific reference is made to theprovisions of Maharashtra Recognition of Trade Union and Preventionof Unfair Labour Practices Act, 1971 where under the method ofdeciding the collective bargaining agent is on the basis of thelarger membership of the trade union concerned though not on thebasis of the ballot, which can be seen from Chapter-III of the Actand which applies to those undertakings wherein 50 or more personsare employed. Similarly, under the Bombay Industrial Relations Act,1946, which applies to specific industries in Maharashtra andGujarat, the recognition of the collective bargaining agent is on thebasis of the larger membership arrived at on the basis of theverification. Similar is the provisions in the Madhya Pradesh Act. Inthe matter before us, the State Government has undoubtedly referredto and relied upon the Code of Discipline where in Appendix-IV ofthat Code of Discipline, the procedure for verification of membershipof union has been laid down. Under clause-2 of that procedure, theChief Labour Commissioner has to arrange the verification ofmembership of the unions entitled to recognition. Under clause-3 they https://hcservices.ecourts.gov.in/hcservices/ have to submit a list of their members who have paid subscription foratleast 3 months during the period of six months immediatelypreceding the date of reckoning along with the membership register,counter foils, cash and account books, bank books and theconstitution of the union. Under clause-5 the verification officerhas to check the list of members and then under clause-6, he has toinform the union in writing that the verified list of the respectivemembers are ready for inspection. Under clause-7 the unions are freeto submit their objections and thereafter the objections receivedfrom the unions are to be verified by personal interrogatories asspecified in clause-7 thereof. 34. In Balmer Lawrie Workers’ Union v. Balmer Lawrie & Co. Ltd.,reported in 1984 (Supp) SCC 663, the Apex Court was concerned withthe validity of the provisions of the above referred Maharashtra Act.In para-12 of the judgment, the Apex Court referred to therecommendation of National Commission of Labour, and then observed asfollows: -“A need was felt that where there are multipleunions seeking to represent workmen in anundertaking or in an industry, a concept ofrecognised union must be developed. StandingLabour Committee of the Union of India at itsTwenty-ninth Session held in July 1970 addresseditself to the question of recognition of tradeunion by the employer. In fact even amongst tradeunion leaders there was near unanimity that theconcept of recognised union as the solebargaining agent must be developed in the largerinterest of industrial peace and harmony.National Commission on Labour chaired by lateShri P.B. Gajendragadkar, former Chief Justice ofIndia, after unanimously and whole heartedlyexpressing itself in favour of the concept ofrecognised union and it being clothed with powersof sole bargaining agent with exclusive right torepresent workmen, addressed itself only to thequestion of the method of ascertaining whichamongst various rival unions must be accorded thestatus of a recognised union. Planting itselffirmly in favour of democratic principle, it wasagreed that the union which represents thelargest number of workmen working in theundertaking must acquire the status as that wouldbe in tune with the concept of industrialdemocracy. The fissures arose as to the method offinding out the membership. The Commission hadbefore it two alternative suggestions forascertaining the membership, (i) verification ofmembership by registers and (ii) by secretballot. As there was a sharp cleavage of opinion,the Commission left the question of adopting oneor the other method in a given case to the https://hcservices.ecourts.gov.in/hcservices/ proposed Industrial Relations Commission whichwas recommended to be set up if therecommendations of the Commission were to beaccepted. What is of importance to us is thateveryone was agreed that where there are multipleunions in an industrial undertaking or anindustry, the union having the largest membershipof the workmen must be clothed with the status ofrecognised union and consequently as the solebargaining agent. The underlying assumption wasthat the recognised union represents all theworkmen in the industrial undertaking or in theindustry.”35. In Food Corporation of India Staff Union v. Food Corporationof India and others reported in 1995 (II) LLJ page 272 also the ApexCourt observed that when in an establishment, be it an industry or anundertaking, there are more than one registered trade unions, thequestion as to with whom the employer should negotiate or enter intobargaining assumes importance, because if the trade union claimingthis right be one which has its members in minority of theworkmen/employees, the settlement, even if any arrived between theemployers and such a union, may not be acceptable to the majority andmay not result in industrial peace. In such a situation with whom theemployers should bargain or to put in differently, who should be thesole bargaining agent, has been a matter of discussion and somedispute. In the aforesaid judgment, the Apex Court has observed thatthe check-off system has lost its appeals and the method of secretballot was being gradually accepted. That was however a case wherethe method was agreed by consent. 36. Quite contra is the view of the Apex Court in AutomobileProducts of India Employees Union v. Association of EngineeringWorkers, Bombay and others reported in 1990 (2) S.C.C 444. In theaforesaid case, the matter arose from the provisions of the M.R.T.Uand P.U.L.P Act. The recognition of unions under the M.R.T.U andP.U.L.P Act is covered by Sections 10 to 18 of the Act. It isrelevant to note that the provisions of M.R.T.U and P.U.L.P Act hasgranted statutory recognition to the method of verification ofmembership to determine the majority character of the union. Theprocedure laid down for verification is based on the membership, sixmonths previous to the date of application. The respondent-unionthere was the recognized union. The appellant-union claiming majorityof membership applied for cancellation of recognition of the firstrespondent-union. The application by appellant-union was allowed,which was however set aside by the High Court. On appeal, the SupremeCourt noted that though there was a strong demand from some sectionsfor recognizing the bargaining agent of the workmen by a secretballot or otherwise, the National Labour Commission did notcountenance it for certain obvious reasons. It was felt that theelective element would introduce unhealthy trends which would beinjurious to the trade union movement, for industrial peace andstability and endanger the interests of the workers, the employers https://hcservices.ecourts.gov.in/hcservices/ and the society as a whole. The Supreme Court, after examining thevarious provisions, held that what the Industrial Court did bypermitting recognition of the union by secret ballot, was by a methodclearly derogatory to the Act. The Supreme Court further observed asunder: -“ However, overwhelming, therefore, the vote maybe in its favour in a ballot, it will not entitlea union to recognition under the Act. Therecognition by ballot or by any method other thanthat laid down in the Act is, therefore, alien tothe Act.” 37. Having noted this scenario and considering that there iscontinuous strife in the company, in our view, the Court cannotsimply remain a silent spectator. We are aware that the Court has itsown limitations while exercising jurisdiction to issue appropriatewrit or direction. On analyzing the provisions of Article 19(1)(c),it recognizes the right to form association and also the mandate ofIndustrial Disputes Act that there should be recognized union andwhen there is a inclination of the State Government to accept aparticular procedure, which is otherwise also accepted in differentstatutes throughout the country, in our view, the correct course willbe to give a direction to the Commissioner of Labour to call upon thetwo unions to submit their membership details as per the Code ofDiscipline and examine their membership as provided under the Codeover a period. In the event, there are any objections, the objectionscould be verified in the light of clause-7 of the Code of Disciplineby personal interrogatories so as to arrive at the correct membershipof either of the two trade unions. Alternative to this procedurenamely, ballot system, which, although is recommended by theCommittee of the ILO, is not accepted in any of the statutes whichhave been brought to our notice. The recommendations of the Committeecan only be respected to this effect that there has to be acollective bargaining agent of the workmen, which is to be a trulyand independent representative agent. As far as the methods suggestedby the Committee is concerned, it would result into determination onthe basis of the facts arrived at a particular point of time, whichhas not been very much appreciated as a proper method. The method ofverification on the other hand will show the following of aparticular union over a longer period and would definitely be abetter option. The other alternative approach is to say that none ofthe methods is recognized and therefore the choice of the managementwill prevail. That certainly cannot be permitted in view of theprovisions of the fifth schedule of the Act. The Code of Conduct hasa force of acceptance of the organizations of the workers and of theManagement and also of the Government, and is being followed indifferent undertakings. Further, it is also in tune with theprovisions of the different statutes in different States. 38. In the circumstances, in our view, the only alternative, asstated above, is to direct the State Government and the Commissionerof Labour to conduct the exercise as per the Code of Discipline, towhich the State Government is agreeable. Accordingly, the Petitioner https://hcservices.ecourts.gov.in/hcservices/ Union may apply to the concerned Labour Commissioner within two weeksfrom today presenting the claim of its membership figures during thelast six months i.e., for the period from 1st march, 2009 to 31stAugust, 2009. On receipt of such an application, the concerned LabourCommissioner will issue notice to the two unions, within two weeksfrom the date of receipt of the application, calling upon them tosubmit their membership registers and the necessary supportivedocuments under the Code of Discipline within two weeks from the dateof receipt of the notice by them. The notice will call upon them toproduce their records as per the Code of Discipline during the periodof six months prior to the date of notice. The Labour Commissionershall thereafter proceed to decide as to which Union is therepresentative union of the workmen. We cannot permit the Managementto say that the Union which shows the larger membership at the end ofthe exercise will not be recognized by the Management. Recognition isfor the purpose of representing the causes of the workmen in variousfora including before the Management and various authorities underthe Labour Law. It is not a determination available for the solesatisfaction of the Management. It is a factual determination and thedetermination leads to a status. The Union which establishes a largermembership at the end of the aforesaid exercise, shall be recognizedas the representative union.39. The writ petition is allowed with the aforesaid directions.In view of the disposal of the writ petition with the directionsspecified above, the writ appeal stands disposed of. Themiscellaneous petitions will stand disposed of. Those workmen whowant to avail the benefit of the settlement will be free to acceptit, though it will be open to the petitioner union to challenge thelegality and validity thereof by taking appropriate steps by raisingdemand and carrying the matter to the Industrial Tribunal. 40. The writ petition is accordingly allowed, though we refrainfrom awarding any costs. The writ appeal stands disposed of. Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarpv/-Copy to:1. The Secretary, Government of Tamil Nadu, Labour and Employment Department, Fort.St.George, Chennai – 600 009.2. The Secretary, Union of India, Ministry of External Affairs, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary, Ministry of Labour, Shram Shakti Bhavan, New Delhi.+ 1 cc to Mr.S.Ramasubramaniam & Associates,SR.45992+ 1 cc to Government Pleader,SR.45483+ 1 cc to M/s.Ramapriya Gopalakrishnan,Advocate,SR.45068+ 1 cc to Prof.C.S.Sundararaj,SPCCG,SR.44966+ 1 cc to Mr.K.M.Ramesh,Advocate,SR.45009 W.P.No.17991/2008& W.A.No.674/2009MRD(CO)EM/17.9.09