A.M. Bhattacharjee, C.J.
1. I have gone through the judgment prepared by Bataybal, J. appearing hereinafter. For the reasons stated in the judgement, I agree that the appeals are to be allowed and the writ petition giving rise to these two appeals is to be dismissed.
2. The right to form association or union is a fundamental right guaranteed by Article 19(1)(c) of the Constitution. If the union is a union of workers, a recognition of the union by the employers would obviously facilitate the activities of such a trade union. But every activity which facilitates the exercise of a fundamental right specifically guaranteed by the Constitution is not necessarily comprehended in that fundamental right. Even if it appears that a given fundamental right may not be fully exercised without some further or additional right, such further or additional right cannot as a matter of course be ragarded as part of the guaranteed fundamental right. The test to be applied is, whether the right claimed is an integral part of the specified fundamental right or partakes of the same basic nature and character as of that fundamental right so that the exercise of such right is in reality and substance nothing but an incidence of the exercise of the guaranteed fundamental right. Reference in this connection may be made to the celebrated decision of the Supreme Court in Maneka Gandhi : [1978]2SCR621
3. It may be, as already noted, that recognition by the employers of a trade union would go a long way to make the activities of the union much more effective. But from that alone it cannot be concluded that right to form union or a trade union embraces within itself, the right of the said union to be recognized by the employers or some other authority. Such a right must follow or flow from some other provisions of the law and unless such a right is acquired in accordance with the provisions of such law, the same cannot be enforced.
4. As pointed out by my learned brother, Batybal, J., the petitioner in this case has not acquired any right to be recognized by the Port authorities or to represent their members in the negotiation for settlement of wages etc., at the national level.
5. As stated at the outset, we allow the appeals, set aside the order under appeal, and dismiss the writ petition giving rise to these appeals; but in the circumstances, we make no order as to costs.
N.K. Bataybal, J.
The twin appeals-one by the Board of Trustees for the Port of Calcutta and the other by the Union of India -are directed against the Judgment and order dated 16th January, 1992 passed by a learned Judge of this Court Matter No. 230 of 1989 of the Original Side of this Court allowing the writ petition filed by the repondent Nos. 1 to 8 challenging the decision of the Port Trust Authority debarring and/or disallowing the petitioners to participate in the negotiations for wage revision and res-training the respondents, namely, Union of India, the Board of Trustees of the Port of Calcutta, the Dock Labour Board, Calcutta and the Secretary, Ministry of Labour, Government of India from entering into settlement and or agreement with other federations of Dock and Board employees to make an effective representation at the national level negotiations of wage revision and other consequential reliefs.
Haldia-Calcutta Port & Dock Shramik Union, petitioner No. 1 in the writ petition, is a registered Trade Union of which the petitioner No. 3 is the Deputy General Secretary and the petitioner Nos. 4 and 5 are the Treasurer and Secretary. The petitioner No. 2 in the writ petition is the second largest Federation of Trade Unions amongst the employees of the Ports and Docks in India and is affiliated to the Bharatiya Mazdoor Sangh, a National Trade Union Organization.
7. The Board of Trustees of the Port of Calcutta, the appellant (the respondent No. 2 in the writ petition) and the Calcutta Dock Labour Board the respondent No. 10 in the appeal (the respondent No. 2 in the writ petition) are the authorities for proper administration, control, management and affairs of the Port of Calcutta and for the purposes of loading and unloading of the goods of the Port of Calcutta.
8. The Port Authorities provide essential accommodation to a large number of employees belonging to Class-Ill and Class-IV categories of employees. For such accommodation they are realising rent at the rent of 10% of the old pre-revised salary of the respective allottees by making deduction from their salary from 1st January, 1974. Prior to that date, the employees were required to pay standard rent. In connection with the unreasonable deduction of 10% salary of the respective employees, the writ petitioners raised a dispute before the authorities but to no effect. Ultimately an application under Article 226 of the Constitution of India being C.O. 1986 was filed before this Court. The said writ petition is still pending. Subsequently on 24th August, 1987 the writ petitioner No. 2 submitted to the authorities, the demands for revision of Pay Scale and Allowances of Class-in and Class-IV employees on behalf of the members of their Unions. In view of the fact that the settlement dated 11th April, 1984 expired on 31st December, 1987. The writ petitioner No. 2 by a letter dated 3rd October, 1987 forwarded a copy of the charter of demands to the authorities, namely the Union of India and the Board of Trustees of the Port of Calcutta (respondent Nos. 1 and 2 in the writ petition) claiming that they are entitled to represent at the national level negotiation for wage revision and requested the said respondents to consider their demands, but the respondents in the writ petition did not reply to the said letter. In another letter dated 28th November, 1987, the writ petitioners Nos. 1 and 2 requested the Union of India (respondent No. 1 in the writ petition) to allow the petitioners to enter into negotiation about the demands submitted by the writ petitioners at the forthcoming wage revision of the employees of the Ports & Docks in India. In that letter the petitioners duly mentioned that the petitioners Union was affiliated with the Bharatiya Mazdoor Sangh which is the second largest Central Trade Union in the country. The petitioners claim that they have the right to be represented in the ensuing wage negotiation for the interest of the large number of employees who are the members of their Union.
The writ petitioners have recently come to know that the Union of India(respondent No. 1 in the writ petition) has entertained negotiations with the four Federations of Union, namely, Indian National Port & Dock Workers Federation, All India Port & Dock Workers Federation, Water Transport Federation of India and Port & Dock Water Front Workers Federation of India, for revising the wage structure of the employees of the major ports including the payment of House Rent Allowance to the employees of the said major Port Trusts and connected Docks. The authorities did not issue any public notice or circular inviting the writ petitioners Nos. 1 and 2 to such negotiations in an arbitrary and discriminatory manner. The claim is that about 8500 employees out of a total 22,000 employees of the Calcutta Port Trust and Calcutta Dock Labour Board are members of the Union of the petitioner Nos. 1 and 2. The writ petitioner No. 1 is a registered Trade Union of Employees of the Port and Dock Workers and has the right to raise the demand and/or dispute on behalf of the employees of the Port & Dock Workers and they have the right to participate in the collective bargaining with the authorities. The Union of India (the respondent No. 1 in the writ petition) without any reasonable cause is debarring the writ petitioners Nos. 1 and 2 from participating in the collective bargaining for the wage revision of the Port & Dock Employees of the Major Ports. But they are allowing other four Federations of Employees of Major Ports as stated above to participate in the said negotiation for wage revision without any just and reasonable cause. There are various other allegations of illegal labour practices and the acts done and/or caused to have been done by the respondent Nos. 1, 2 and 3 in the writ petition are irregular and illegal. On these facts, the writ petitioners have sought the reliefs as stated above.
9. The writ petition is contested by the respondents by filing affidavits. In the affidavits worn on behalf of the Port Trust Authorities, Calcutta, it has been stated that there are ten operating Major Ports, namely, Bombay, Calcutta, Cochin, Kundla, Marmagao, Vishakapattanam, New Mangalore, Paradip, Tuticorn and Madras and there are seven Dock Labour Boards, namely, Bombay, Calcutta, Madras, Cochin, Kundla, Marmogao and Vishakapattanam. The total number of workers in the Ports and Dock Labour Boards come to about 1.3 lakhs. On the basis of the recommendation of the Central Wage Board the service conditions of Ports & Dock Workers were determined with effect from 1st January, 1979 and the same were revised on the basis of the recommendations of the Wage Revision Committee for the Ports & Dock Workers from 1st January, 1974. The recommendation of the Wage Revision Committee was, however, implemented after settlement signed on 14th July, 1977 with the representatives of four Federations, namely, Indian Port & Dock Workers Federation, Indian National Port and Dock Workers Federations, Port, Dock & Waterfront Workers Federation of India and Water Transport Workers Federation. Subsequently by an agreement entered into between the Union of India and said four Major Federations of Port & Dock Workers, the wage revision was made effective from 1st January, 1980 and again on and from 1st January, 1984. The last wage revision settlement expired on 31st December, 1987 and was due for revision from 1st January, 1988. The said our Federations on 16th November, 1987 submitted a joint charter of demands before the Central Government. The Unions of Port & Dock Workers, affiliated to these four Federations, served the same charters and in order to arrive at a new settlement, negotiations are being held between the employees, comprising of the four Major Federations on the one side and the Major Port Trusts, Dock Labour Boards and Federations of Associations of Stevedore on the other side. There are large number of other Unions throughout the country but no individual Union is invited for discussions at the apex level unless it has a representative character. In the background of such facts and circumstances, the allegations of the writ petitioners have been denied and the locus standi of the writ petitioners has been challenged for lack of their representative character.
10. In an affidavit on behalf of the Union of India, Ministry of Surface Transport, it has been stated that the recommendation of the Wage Revision Committee was implemented under a settlement signed on 4th July, 1977 with the representatives of the four Federations as indicated above and the subsequent Wage Revisions were effective from 1st January, 1980 and 1st January, 1986. The last wage settlement expired on 31st December, 1987 and the revision of wage was due on and from 1st January, 1988. In this affidavit it has been alleged that the writ petitioner No. 1 has not got the representative character. It is alleged that they have no membership in many of the Major Ports of India and they have some members or followers in a limited number of areas including Calcutta and Haldia.
11. In the affidavit-in-reply on behalf of the writ petitioners the allegatios made in that affidavit-in-opposition have been controverted, reiterating the main points raised in the writ petition. The Learned Trial Judge after giving anxious consideration to the submissions made by the Learned Counsels of both sides and the materials before him has been pleased to allow the writ petition to the extent that while steps should be taken to enter into a negotiation for arriving at a settlement relating to the revision of wage and consideration of payment of house rent allowance, the representatives of the writ petitioners Union should be permitted to sit at the negotiation table and their views should be considered in the proper perspective.
12. Being aggrieved by and dissatisfied with the judgement and order dated 16th January, 1992 passed by the Learned Judge, the Board of Trustees for the Port of Calcutta have preferred an appeal which has been registered as Appeal No. 430 of 1992. Another special appeal has been preferred against the said order by the Union of India as appellant and the same has been registered as Appeal No. 588 of 1992.
13. Mr. Miltra, learned counsel for the appellant, Port Commissioner, has submitted that there is a fundamental mistake in the approach on which the judgement of the Learned Trial Court has been built-up. The Learned Trial Court has taken up for its consideration two points, namely, whether the writ petitioners have any locus standi to participate in the negotiation at the time of wage revision or to support the demand in regard to Housing Allowance and other claims and whether the points raised by the writ petitioners have any merit and it should be considered by the respective authorities at the time of negotiation or settlement as disclosed by the respondent authorities. Mr. Mitra has further submitted that the respondent No. 1 is not a recognized Union at Calcutta Port Trust. According to the Learned Counsel for the appellant, it was absolutely irrelevant for the Learned Court to enter into the question of merits of the issues raised by the writ petitioner and that should be left to the appropriate machinery for disposal. The Court cannot pre-empt their decision on the point. It has been further argued by the Learned Counsel for the appellant that the only and proper point for consideration is whether the writ petitioners have any right to participate in the negotiation at the time of wage revision at the national level.
14. Mrs. Archana Sengupta, learned counsel for the Union of India in Appeal No. 558 of 1992, has submitted that the followers of the respondent Nos. 1 and 2 constitute a microscopic fraction of the total work-force engaged in the Major Ports and Docks in India and as such they have no locus standi to claim that they should be allowed to participate in the negotiation for settlement of wages etc. at the national level.
15. The respondent Nos. 1 and 2 are also recognized Trade Unions although they are registered under the Trade Unions Act, 1926.
16. Mr. Dutta Majumdar, Learned Counsel for the respondents who are the writ petitioners, has submitted that the writ petitioner No. 1 is a registered Trade Union under the Trade Union Act, 1926 and as the respondent Nos. 1 and 2 represent a substantial section of the work-force of the Dock & Labour Boards, they have a right to be invited at the time of negotiation at the national level. Moreover, the points raised by them touch the interest of the work-force as a whole and as there is merit in their case. Therefore, they should be allowed to participate at the time of negotiation.
17. Mr. Mitra, learned counsel, has submitted that registration under the Trade Unions Act, 1926 does not automatically mean recognition by the authorities. Under the Trade Union Act and Regulations framed thereunder, only seven Members can apply to the Registrar of Trade Unions, West Bengal for registration of a Trade Union. Under Section 8 of the said Act, the Registrar on being satisfied in regard to registration shall register the Trade Union by entering into a register to be maintained in such form as may be prescribed, the particulars relating to the Trade Union contained in the statement accompanying the application for registration. The Learned Counsel has submitted that the Supreme Court in Raja Kulkarni v. State of Bombay (1954-I-LLJ-1) has laid down that the right to be recognized or the right to represent the workmen is not an absolute right guaranteed to a Trade Union by Article 19(1)(e) of the Constitution. It was further held that assuming that such a right follows from Article 19(1)(e), it is subject to reasonable restrictions. Even if the State had laid down qualifications for being eligible for recognition (as was done in Bombay), the reasonableness of such restriction would be a matter for the Court and it could not be said that such restriction was ipso facto bad. Mr. Mitra, Learned Counsel, has also referred to the decision in Kerala Minerals Employees Congress v. Assistant Municipal Commissioner and Ors. (1983-1-LLJ-424) whee it has been held that there is no stautory right vested in any Union to compel the Management to recognize it. The Union could raise an industrial dispute regarding non-recognition. Mr. Mitra has further argued that the right of registered Trade Union to represent the workers for raising a dispute under the Industrial Disputes Act is to be distinguished from the right to compel the administration to allow a particular Union to be recognized for negotiation on wages etc. at the national level. Mr. Dutta Majumdar, learned counsel for the respondent Nos. 1 and 2 in support of his contention referred to West Bengal Press Workers & Employees' Union v. Article Union Printing Works Pvt. Ltd. and Ors. (1962-II-LLJ-62) where it has been held that the Trade Unions have a right to be recognized as representatives of aggrived workmen. The said case lays down that nobody has a right to apply under Article 226 of the Constitution unless he is himself an aggrieved person or unless his rights are affected by any order made by a Government or a Stautory Body. But different considerations apply when a Trade Union moves under Article 226 of the Constitution against an award made by an Industrial Tribunal. Individual workmen are not parties to an Industrial Dispute independently of the Union (as the law then stood) and the Union or those workmen who by their sponsoring turn the individual dispute into an Industrial Dispute have only a say in the conduct of the proceedings before the Tribunal. The same consideration will apply in a proceeding under Article 226 of the Constitution when a Union moves against the award in an Industrial Dispute. Since the Workers Union or Association of Employees are in a position to raise an Industrial Dispute and to help the workmen before the Courts and Tribunals under the I.D.Act, on a reference made on such a dispute, and since such Unions and Organizations are deemed to be parties before the Industrial Courts or Tribunals and since it is their duty to look after, to maintain and to further the interest of workmen, such Unions or Organizations are to be deemed to be affected by an award to which they object. Also, if the law confers on them a right to raise an Industrial Dispute and also a right of representation, then it must be held that they have a legal right to enforce those rights by a writ petition.
18. Mr. Dutta Majumdar, learned counsel for the respondent Nos. 1 and 2 has submitted that in view of the principles laid down in Olga Tellies v. Bombay Municipal Corporation : AIR1986SC180 his clients have got a right to be heard. In that case of eviction of pavement dwellers, the question arose whether the Municipal Commissioners who dispensed with previous notice in special circumstances acted within the bounds of law. In that case it was held that the relevant provision i.e. Section 314 of the Bombay Municipal Corporation Act, 1888 is in the nature of an enabling provision and not of a composite character. It enables the Municipal Commissioners in appropriate cases to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioners must cause removal of an encroachment without issuing previous notice. Section 314 confers on the Municipal Commissioners the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the Constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. Mr. Dutta Majumdar has also referred to the principles laid down in Bhopal Gas Leak Case : AIR1990SC1480 that natural justice requires that the victims should not be condemned unheard, the decision should not be reached behind their backs, that proceedings affecting their lives and property should not continue in their absence and that they should not be precluded from participating in them.
19. In our view, the emphasis of the Learned Counsel for the respondents Nos. 1 and 2 is mis-placed. The principles referred to in the paragraphs mentioned by Mr.Dutta Majumdar are obviously in regard to the procedure in Courts of law. It has got nothing to do with negotiation proceedings or collective bargaining in labour matters outside the purview of the I.D.Act.
20. It is true that all and sundry Trade Unions cannot be asked to take part in national level negotiations for wage settlement of Port & Dock Workers of the Major Ports in India but there is no stautory standard for eligibility for recognition of any Trade Union. In this connection, reference may be made to the Indian Trade Union's (Amendment) Act, 1947 which provides that a Trade Union would be stautorily eligible for recognition only if it is representative of all the workmen employed by the employer in that industry. But this Amendment has not yet been brought into force by appointing a date by the Central Government as envisaged by Section 1(2) of the Amendment Act, 1947. In the Bombay Industrial Relations Act, 1947 a particular percentage (15% representatives of all the workers) was fixed for earning eligibility for recognition by the employer. In Girija Shankar v. Gujarat Spinning Company (1962-I-LLJ-369) that standard which stood the test of reasonableness (Sic).
21. In this connection the attention of this Court has been drawn to page 10 of the affidavit of Anil Chandra Kayal on 7th April, 1993 on behalf of the appellant in Appeal No. 430 of 1991; this is an administrative instruction under the heading Rules for the recognition of Unions of Workers Employes etc. in the Ministry of Defence Installations and the Recognition of such Unions. In paragraph 3 thereof, it is stated that to establish the representative character of the Union it will be deemed sufficient if not less than 15% of the workmen whom the Union purports to represent are its members. Attention of the Court has also been drawn to paragraphs 2, 3 and 5 of the affidavit sworn by Mr. Kayal where Mr. Kayal has stated that in the Port of Calcutta there are only two recognized Unions, namely, the Calcutta Port Shramik Union and the National Union of Waterfront Workers. In that affidavit it has been asserted that the membership strength of the respondent No. 1 Union is negligible at the Port for Calcutta which includes the Haldia Dock Complex being far less than 15% of the total strength of workers at Calcutta Port. Similar is the case of respondent No. 2 Federation. Our attention has also been drawn to paragraph 4 of the counter-affidavit sworn by Mr. R.T.Chandra who happens to be the president of the respondent Nos. 1 and 2 ; he has denied that there are two recognized Unions at Present in Calcutta Port Trust. He has stated that prior to 1957 there were two recognized Unions, namely, Calcutta Port Shramik Union and the National Union of Waterfront Workers. Thereafter a large number of Unions namely, Dock Majdoor Union, Calcutta Dock Labour Board Employees' Association, Supervisory Staff Association, Calcutta Dock Workers' Union and Calcutta Port & Dock Workers Union were recognized by the Calcutta Port Commissioners and this is evident from the fact that the said Unions were allowed to participate in the proceedings of Wage Board presided over by the Hon'ble Mr. Justice N.P. Dave held during the period between July, 1966 and December, 1967.
22. However, it may be mentioned that the respondent Nos. 1 and 2 have not submitted the precise number of the members of their Trade Unions or Associations. Mr. Dutta Majumdar, Learned Counsel for the respondent Nos. 1 and 2 has submitted that the relevant figures are with the authorities and they are quite awae of the numbers of workers attached with their Unions and Federations. A publication under the title 'Annual Report published by the Government of India, Ministry of Surface Transport, New Delhi' showing the strength of different categories of employees and workers in Major Ports in India as on December 31, 1990 and other details has been made available to us with the consent of both the sides. From this, total number of employees in Major Ports as on December 31, 1990 comes to 98,760 and the total number of workers at the Major Dock Labour Boards as on the same date comes to 20,960 and the total number of clercial staff in Dock Labour Boards comes to 3,527. The number of Officers in Class-I and Class-II posts at the 11 Major Ports comes to a total of 3505. From a perusal of the answer to unstarred question No. 4510 for September 5, 1990 in the Lok Sabha, the total number of Haldia Calcutta Port and Dock Shramik Union comes to 2116. It further appears that the said Union has no following in many of the Major Ports in India. In terms of percentage of the total number of workers, the members of Haldia-Calcutta Port Dock Shramik Union, respondent No. 1, conies to less than two per cent.
23. In this context the question is whether the writ petitioners Nos. 1 and 2 (respondent Nos. 1 and 2) in the appeals have any right to represent the workmen in the negotiation for settlement of wages etc at the national level. It is true that there is no cut and dried rule laid down anywhere to indicate what should be the minimum percentage standard before a Trade Union can claim recognition from the Government or Stautory Authority. For that the Stautory Authority cannot act in an arbitary manner. In a Bombay case referred to above the minimum percentage was fixed at 15 per cent. In the administrative instructions referred to in the affidavit of Mr. Kayal the percentage has been fixed at 15 per cent but this cannot be said to be binding authorities unless there is Stautory footing for that. An intelligent, reasonable standard has got to be applied. From the principles of law as discussed earlier above it is found that a registered Trade Union does not automatically get a right for recognition from the authorities. There is no stautory right vested in any Union to compel the Management to recognize it. As a matter of fact the writ petitioners have come before the Court to compel the authorities to give them recognition. Before they can vindicate their claim they have to establish that by reasonable standard they can be said to represent a substantial section of the work force. That may be 15 per cent or more or less but by no reasonable standard it can be said that a Trade Union which represents less than 2 per cent of the work force can be said to have that representative character which will impel the Court to direct the Management to give recognition to the Union. In view of the principles laid down in Olga Tellis (supra) case it cannot be said that in a situation like this the authorities acted beyond the bounds of law in not inviting the respondents Nos. 1 and 2 for negotiation of wages etc. at national level discussion.
24. We find substance in the argument advanced by Mr. Mitra, Learned Counsel for the appellant, Port Commissioner that it was not relevant at all for the Learned Trial Court to go into the question of merits of the demand by the writ petitioners. It cannot, by any standard, be said that it is the proper jurisdiction of the Court to spell out what should be the Agenda of the National Wage Consideration Board of Dock Workers or what should be their views on any particular matter before the negotiations start.
25. In view of our findings made above, we allow the appeals, set aside the impunged judgement and dismiss the writ petition. In the circumstances of the case, no order as to costs.