Mahendra Bhushan Sharma, J.
1. An important question is involved in this writ petition as to whether a Representative Union has a right to be recognised by the employer as the only authorised agent for collective bargaining ?
2. As ususal there are more than one union of workmen employed in Chandmari Copper Project Khetri of Hindustan Copper Ltd. (for brevity 'Industry'). Nearly, 300 workmen are employed in the Industry. The petitioner union, Hindustan Copper Mazdoor Sangh, is affiliated with Indian National Trade Union Congress (INTUC), whereas respondent No. 4, Khetri Tamba Sharmik Sangh, is affiliated with All India Trade Union Congress (AITUC). For brevity the petitioner union shall be referred to as the Representative Union, and respondent No. 4 as the Union. The representative union is registered under the Trade Unions Act, 1926 (for short, the Act) and its registration No. is 36/77. It claims the membership of about 250 workmen out of 300 workmen working in the Industry. The case of the representative union is that in any industry where more than one union claim to be operating the management has to give recognition to one of the unions as the authorised agent for the purpose of collective bargaining with the management on behalf of the workman and such recognition goes to the union which has the highest membership in the industry.
3. In the year 1979, a question arose as to which union should be recognised as the authorised bargaining agent for the Khetri Copper Complex. At that time, besides the Union, there were two more unions in Khetri Copper Complex of the workmen employed there, namely Khetri Copper Mazdoor Sangh affiliated to Bhartiya Mazdoor Sangh and Khetri Copper Workers Union affiliated to CITU, who claimed recognition. The question was decided by poll through secret ballot and the result went in favour of Khetri Copper Mazdoor Sangh (Representative Union). But, the procedure of secret ballot was not followed in the industry and without adopting the method of verifying the majority membership, in an arbitrary manner and surreptitiously recognition was given to the branch of respondent No. 4 on September 3, 1979, for a period of two years in spite of strong objection of the representative union. That recognition was valid only for a period of two years and came to an end on September 2, 1981. The case of the representative union is that though the period of two years, as aforesaid, has come to an end, but still the management of Hindustan Copper Ltd. did not proceed to initiate any process for giving recognition for collective bargaining on behalf of the workmen in the industry. The representative union moved the Registrar of Trade Unions for recognition of the petitioner union to be the representative union of workmen for the industry. The Registrar of Trade Unions after examining the matter issued a certificate No. RRU/82 on January 7, 1982, under Section 9 of the Industrial Disputes Act, 1947, as amended by Indian Disputes (Rajasthan Amendment) Act, 1958. After the aforesaid recognition of the petitioner as representative union, the management should have recognised it as the authorised bargaining agent on behalf of the workmen of the industry, but out of ill-will towards the representative union, it did not give recognition to it as the authorised bargaining agent. The representative union approached the Chief Labour Commissioner (C), who started the process of verification of membership under the Code of Discipline. The Assistant Labour Commissioner (C) is said to have found that the representative union is the majority union. Thereafter, a report is said to have been sent by the Assistant Labour Commissioner (C) to the Chief Labour Commissioner (C) verifying that it has majority of the workers or its member and declaring the petitioner union as deserving recognition, but the grant of recognition was delayed and then letters were addressed by the Secretary, INTUC as well as by the President, INTUC. According to the petitioner, the procedure laid down in the Code of Discipline provides for maximum two chances for submission of information and records by the rival claimant unions for recognition to the authorities, the Union having failed to submit the requisite information and records, the Assistant Labour Commissioner (C) having made his recommendation, the Chief Labour Commissioner (2) ought to have issued directions in favour of the petitioner, union, but violating the procedure laid down in the Code of Discipline, the Chief Labour Commissioner (C) appears to have directed for giving a third opportunity of the union for submission of records and information. The Assistant Labour Commissioner (C) visited the industry on October 20, 1983, without giving any notice to the representative union, obtained the list of membership from the union on the spot and immediately asked for the objection of the representative union then and there. According to the representative union, though the method adopted by the Assistant Labour Commissioner (C) was not fair and the petitioner objected to it, but at the instances of the Assistant Labour Commissioner (C), the petitioner union jotted down the objection as could be done on the spot and in the hot-haste in which the Assistant Labour Commissioner (C) wanted those to be submitted. The Asstt. Labour Commissioner (C) on the contrary gave time to the union to submit their objection on the next day. Thus, according to the representative union the method adopted for verification by the Assistant Labour Commissioner was not fair and the request thereafter was made for personal verification of the membership of the two unions, the representative union and the union, but no action was taken and under Annexure 26, dated July 9, 1984, the recognition has been granted to the union (respondent No. 4) as bargaining agent on behalf of the workmen employed in the industry for a period of two years commencing from July 9, 1984, subject to registration of respondent No. 4 remaining valid and subject to its continued observance of the Code of Discipline in industry.
4. The representative union has challenged Annexure 26 dated July 9, 1984 and has sought the direction that it be declared to be the only representative union and respondents No. 1 to 3 be directed to recognise it as the authorised agent for collective bargaining on behalf of the workmen employed in the industry.
5. Show cause notice was issued to the respondents No. 3 and 4 as to why the writ petition be not admitted and in compliance thereof Mr. Dhankar, learned counsel has put in appearance on behalf of respondent No. 3. Arguments were heard at the admission stage.
6. Mr. Sharma, learned counsel for the petitioner, has contended that the petitioner has been registered under Section 9E (Chapter II-B) of the Industrial Disputes Act, 1947 (for short, the ID Act) as the representative union and therefore the petitioner alone could be recognised by the management of the industry as the authorised bargaining agent for collective bargaining on behalf of the workmen employed in the industry. In my opinion, the registration of a union as representative union under Chapter II-B of the ID Act, does not confer a right in the representative union to be recognised by the employer as the sole authorised bargaining agent on behalf of the workmen. The ID Act, was amended in Rajasthan vide the Rajasthan Act No. 34 of 1858 with effect from July 1, 1960, as amended by the Rajasthan Act No. 14 of 1970, with effect from February 26, 1970. Chapter II-B was inserted. The heading of the Chapter II-B is 'Registration of Unions'. Under Section 9C a duty has been cast on the Registrar to maintain, in such form as may be prescribed, a register of unions registered by him under the provisions of the ID Act. Under Section 9D any union which has for the whole of the period of at least three months during the period of six months immediately preceding the calender month in which it so applies under this section membership of not loss than fifteen per cent of the total number of workman employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a representative union. Under Section 9E on receipt of an application from a Union for registration under Section 9D and on payment of the fee prescribed, the Registrar shall, if, after holding such inquiry as he deems fit, he comes to the conclusion that the conditions requisite for registration specified in the said section are Satisfied and that the Union is not otherwise disqualified for registration, enter the name of the Union, in the appropriate register in such form as mentioned in Section 9C and issue a certificate of registration in such form as may be prescribed. Under its proviso, where two or more unions fulfilling the conditions necessary for registration under this Act apply for registration in respect of the same unit of an industry, the Union having the largest membership of employees employed in the unit of the Industry shall be registered and the Registrar shall not register any union if he is satisfied that application for its recognition is not made bonafide in the interest of the workmen, but is made in the interest of the employers to the prejudice of the interest of the workmen. Under Sub-section (2) of Section 9-E, once a union has been registered as a representative union under the ID Act. the registration of the union shall be held valid for a period of two years from the date of its registration and shall continue to hold valid unless the registration is cancelled under Section 9-F of the ID Act or another union is registered in its place according to Section 9-G of the ID Act. Section 9-F containing the provisions for cancellation of registration and Section 9-G provides for procedure for registration of another Union in place of existing registered union. Section 9-I confers right of appeal to any party to the proceedings before the Industrial Tribunal against the order of Registrar under Chapter II-B and the said appeal can be filed within 30 days from the date of the order passed. The Tribunal may for sufficient reasons admit any appeal after expiry of the period of 30 days. The orders passed under Section 9-E, 9-F or Section 9-G or an order passed in appeal under Section 9-I are required to be published in the prescribed manner.
7. It will be seen from the above provisions of law that any union, which has, for the whole of the period of at least 3 months during the period of six months immediately preceding the calender month in which it so applies, a membership of not less than fifteen percent of the total number of workmen employed in unit of an industry may apply in the prescribed form and it shall be registered as Representative Union in case it is not otherwise disqualified for registration. But, in case there are two or more unions fulfilling the conditions necessary for registration under the ID Act and they apply for registration in respect of the same unit of an industry, the Union having the largest membership of the employees employed in the unit of the industry shall be registered as representative union. The recognition as representative union is only valid for two years. But there is no provision in Chapter II-B of the ID Act or even in the Act that such of the union which is registered under Chapter II-B of the ID Act and a statutory recognition is conferred on it, has the right to be recognised by the employer as the authorised bargaining agent for collective bargaining on behalf of the workmen. Section 10A of the ID Act provides for voluntary reference of disputes to arbitration. Along with insertion of Chapter II-B of the ID Act, Chapter III-A was also inserted. Along with the aforesaid insertions, after Clause (OO) in Section 2 of the ID Act, clauses (OOO) and (OOOO) were inserted which define 'Registrar' and 'Representative Union' respectively. Representative Union' means a union for the time being registered as representative union under the ID Act. Under Section 10B of the ID Act, any employer and a Representative Union or, in the absence of any registered representative union, any other union which is representative of employees may, by a written agreement, agree to submit any present or future industrial dispute or class of such disputes to the arbiration of any person whether such arbitrator is named in such agreement or not. Such agreement shall be called a submission. A copy of every such submission shall be sent to the Registrar who shall register it in the register to be maintained for the purpose' and shall publish it in such manner as may be prescribed. In the absence of any provision to the contrary contained in the arbitration agreement, every submission is irrevocable. But a submission to refer future disputes to arbitration may at any time be revoked by any of the parties to such submission by giving the other parties three months' notice in writing. But again, before the expiry of the said period of three months the parties may agree to continue the submission for such further period as may be agreed upon between them. A look at the provisions of Chapter III-A will show that the Representative Union as defined in Section 2 of the ID Act and the employer may by a written agreement agree to submit any present or future industrial dispute or class of such disputes to the arbitration of any person whether such arbitrator is named in the said agreement or not. Only in the absence of representative union as aforesaid, any other union which is representative of the employees, may by a written agreement, agree to submit any present or future industrial dispute or class of such disputes to the arbitration of any person whether such, arbitrator is named in such agreement or not. Thus the only right which is conferred on the representative union is to enter into a written agreement with the employer to submit the present or future industrial disputes or class of such disputes to arbitration of any person and the registration of the union as recognised union under Chapter II-B of the ID Act does not confer a status or a right on the representative union to be recognised by the employer as the sole authorised bargaining agent for collective bargaining on behalf of the workmen employed in the industry.
8. Unless a statute confers an exclusive right on the union of workmen to enter into negotiations with the management even a minority union of workmen, if there are more than one union in the industry or establishment can raise demand and conciliation proceedings can be initiated and settlements can be arrived at. If the conciliation proceedings fail any industrial dispute raised even by a union which does not represent the majority of the workmen, may be referred for adjudication by the Government to the Labour Court or Industrial Tribunal. No doubt, it is within the competence of the legislature to confer an exclusive right on a recognised union, to enter into negotiations with the employer on behalf of the workmen whether or not such of the workmen are members of that Union. But, as already stated, in the absence of any such law, the recognised union cannot claim an exclusive right for negotiation as a sole authorised bargaining agent for collective bargaining on behalf of the workmen of the industry or establishment. There can be no dispute that such a law conferring an exclusive right on the recognised union to enter into negotiations will be in the interest of the employer and workmen as a character of demands shall then be made only by such union and not by other unions having only minority of the workmen. But it is for the legislature to intervene as has been done in Maharashtra. In Maharashtra, the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (No. 1 of 1971) (for short, the Act of 1971) was made. Section 20(2) of that Act confers exclusive right on the recognised union to represent in any proceedings under the ID Act. Section 20(2) of the Act of 1971 came up for consideration before their Lordships of the Supreme Court in Balmer Lawrie Workers Union Bombay and Anr. v. Balmer Lawrie & Co. Ltd. and Ors. : (1985)ILLJ314SC . Section 20(2) of the Act of 1971 reads as under:
20(2). Where there is a recognised union for any undertaking:
(a) that union alone shall have the right to appoint its nominees to represent workmen on the Works Committee constituted under Section 3 of the Central Act;
(b) no employee shall be allowed to appear or not to be allowed to be represented in any proceedings under the Central Act (not being a proceeding in which the legality or propriety of an order of dismisal, discharge, removal, retrenchment, termination of service or suspension of an employee is under consideration) except through the recognised union; and the decision arrived at or order made in such proceeding shall be binding on all the employees in such undertaking; and accordingly the provisions of the Central Act, that is to say the Industrial Disputes Act, 1947, shall stand amended in the manner and to the extent specified in schedule-I.
Their Lordships of the Supreme Court took into consideration the record mendations of the Standing Labour Committee of the Union of India (National Commission of India on Labour) chaired by late Shri P.S. Gajendra Gadkar, Chief Justice of India to the effect that where there are multiple unions in an industrial undertaking or an industry the union having the largest membership of the workmen must be clothed with the status of recognised union and consequently as the sole bargaining agent. Their Lordships further observed that Section 20(2)(2) of the Act of 1971 is more or less pari materia with the provisions of the Bombay Industrial Relations Act, 1946. The Bombay Industrial Relations Act had incorporated the provisions for conferring the statuts of a recognised union and despite strident criticism of the method of ascertaining membership. The system seemed to be working well. Section 20(2) of the Act of 1971 was held to be valid and it was observed that so far as individual grievance of the workman or individual dispute of the workmen is concerned, legislature has taken care of such cases and the individual workmen can also raise their dispute and non-recognised union can meet and discuss the grievance of an individual workmen with the employer. It can, therefore, be said that there can be legislation conferring exclusive right on the representative union on which such a status is conferred in accordance with law, to represent the workmen of the unit. Such a course will be beneficial both to the workmen and the employer. But, as already stated earlier, neither Chapter II-B of the ID Act nor any other provision of any law confers such an exclusive right on the representative union to be recognised as the sole bargaining agent on behalf of workmen in the industry. In T K. Padamnatha Menon v. P.V. Kora 1969 Lab. I.C. 1134, the Kerala High Court in another context dealt with the question as to whether the unions have an exclusive right to represent the workmen in the negotiations with the employer. In that case, there was a settlement between the employer and the first union which represent the majority of the workmen recognising it, as the bargaining agent for the workmen. An argument was advanced that in view of the settlement, any first union which is competent to represent the workmen could raise the industrial dispute irrespective of the fact whether Ex. P/2 was a bipartite or conciliation settlement. It was observed that it is the fundamental right of the workers to form trade unions and any trade union satisfying the requirements of the Trade Union Act, 1926 is entitled to registration. Existence of more than one trade union in an industry is ordinary and every one of them is entitled to espouse the cause of the workmen, whom it represents. A contention to the contrary is hardly statable. In Manager, Hotel Imperial, New Delhi v. The Chief Commissioner, Delhi and Ors. ILR 1956 Punjab 341, their Lordships dealt with the same question. So far as the cases of Bombay High Court are concerned which were cited before the High Court there was a provision in the Bombay Industrial Relations Act, 1946 for conferring an exclusive right on the Union to represent the workmen and after dealing with those cases, it was held that mere fact that in other cases certain powers have been given to the representative union, is no ground for holding that the reference is in any way illegal. Therefore, there being no provision of law conferring such a statutory recognition or exclusive right on the representative union, the petitioner cannot claim such an exclusive right.
9. The Code of Discipline is said to provide the procedure for verification of the respective strength of the unions where there are more than one union in a unit or industrial establishment. The Assistant Labour Commissioner (C) according to the representative union verified the strength of the membership of the union and representative union and thereafter is said to have made report to the Chief Labour Commissioner (C). The grievance of the representative union is that as per the provisions of the Code of Discipline only two opportunities should have been given to the representative unions to file their list of membership and thereafter the Assistant Commissioner (C) should have made his report. But the third opportunity was given to the union and thereafter the report was made by the Assistant Commissioner (C) to the Chief Labour Commissioner (C). The question as to whether on a verification under the provisions of the Code of Discipline a union was found to be having the majority of members is a disputed question of fact and cannot be gone into in the extra-ordinary jurisdiction under Article 226 of the Constitution. That apart, even under Clause (ix) of para 4 of the Code of Discipline as reproduced in para 47 of the writ petition, if in any State, statutory provisions for according recognition to the trade unions exist, the same will continue to apply for the purposes of recognition. The case of the repressntative union is that it being a registered union under Section 9-E of the ID Act by the Registrar, no proceedings could be taken under the procedure of the Code of Discipline enumerated above. In an earlier part of this judgment, it has already been said that so far as the registration of the union under Chapter II-B of the ID Act is concerned, it only confers a right on the representative union to enter into written agreement to refer present or future dispute to arbitrator or whether name or not. No exclusive right is conferred on the representative union to be recognised as the sole authorised bargaining agent for collective bargaining on behalf of the workmen which it represents. On verification the Assist. Labour Commissioner (C) is said to have found that the union had the majority of the workmen as its members. This was on verification of the membership strength of the unions operating in the industry, by the Central Industrial machinery. The representative union claims that if there would have been cent-percent verification, it would have been found that it has the majority of the workers as its members. The Code of Discipline does not confer any statutory right. As already stated earlier, as the ID Act and the Act stand, there is no provision under which any union can claim an exclusive right of recognition as a sole bargaining agent. Under the circumstances, I am of the opinion that this Court under Article 226 of the Constitution in its writ jurisdiction cannot quash Annexure 26 dated July 9, 1984, and cannot accord recognition to the representative union having the exclusive right to be the bargaining agent for the workmen of the industry.
10. Consequently, this writ petition fails and is hereby dismissed in limine.