Moil Jan Shakti Majdoor Sangh Vs. Union of India - Court Judgment

Excerpt:
1. sustained industrial growth is possible in a country with an optimum utilization of input. labour, skilled on/and unskilled is an important nay an inevitable input without which no industry can function. and for better and maximum or the optimum utilization of this manpower harmony between the manpower input and the management which uses this manpower for a better output, is a first and foremost aspect in an industrial fora. whereas disharmony between these two forces adversely affects the output and the future of industry. vice versa is true when there is harmony. it is therefore, the workman whose efficiency is paramount to attain optimum. to maintain this efficiency the workman must have the congenial industrial environment. to attain the same, the workman must have the bargaining.....

Judgment:

1. Sustained industrial growth is possible in a country with an optimum utilization of input. Labour, skilled on/and unskilled is an important nay an inevitable input without which no industry can function. And for better and maximum or the optimum utilization of this manpower harmony between the manpower input and the management which uses this manpower for a better output, is a first and foremost aspect in an industrial fora. Whereas disharmony between these two forces adversely affects the output and the future of industry. Vice versa is true when there is harmony. It is therefore, the workman whose efficiency is paramount to attain optimum. To maintain this efficiency the workman must have the congenial industrial environment. To attain the same, the workman must have the bargaining force without which he is subjected to exploitation. Since individual workman has no bargaining power having any impact. It is the collective bargaining power which is of some importance in the industrial relations. The collective bargaining comes from being represented through unions, the formation whereof is under the statute, e.g. The Trade Union Act, 1936. The formation of Union in itself is not sufficient to bridge the gap between the management and the workman unless the union is recognized as representing majority of workers, by the management without which the grievance of the workman as a class does not get ventilated.

2. The difficulty does not arise when there is one Union representing the workmen. Problem arises with more than one Union in an industry, as to who would be the representative union. This always have been the cause of dispute in an industrial concern.

3. As to the best possible mode for selecting a representative Union the same shall be assimilated after the facts of the present case are briefly noted.

4. It is borne out from the pleadings on record that the Manganese Ore (India) Ltd. (hereinafter to be referred as 'MOIL') is a Central Government Undertaking having its registered office at Nagpur. It has under its control the largest and the deepest Manganese Ore mines located at Bhaveli, Tirodu and Ukwa in District Balaghat in the State of Madhya Pradesh and some part of Maharashtra State. Almost 72% of the employees are employed at Balaghat.

5. There are eight registered trade unions at MOIL, viz. Rashtriya Manganese Mazdoor Sangh (INTUC), Kamgar Sangathan, Nagpur, MOIL Janshakti Mazdoor Sangh Balaghat, Bhartiya Manganese Mazdoor Sangh Chikhla, Janshakti Manganese Mazdoor Sangh, Nagpur, M. P. Rashtriya Manganese Majdoor Sangh, Balaghat and Bhartiya Manganese Mazdoor Sangh, Chikhla.

6. That for the purpose of recognition to have the right to bargain for the workers, the MOIL observes the Code of Discipline and amendments made therein from time to time by way of circulars issued by Government of India, Ministry of Labour.

7. That prior to 25.5.04, Rashtriya Manganese Majdoor Sangh (INTUC) was the only recognized Union. On 25.5.04 the Central Industrial Relation Machinery conducted the verification of membership of Union operating in MOIL and declared the results vide letter dated 9.6.04; whereby, the respondent No.5 having been found to have obtained maximum number of votes was recognized as representatives union. It is a matter of record that six unions and the management having consented, the representative union was selected by secret ballot i.e. by election. The recognition of representatives union being for a period of two years as per Code of Discipline, in the year 2006 the selection of representative Union was again by Secret Ballot System. However, in the year 2008 three union and the management did not give the consent for recognition as representative union by Secret Ballot. This led to filing of writ petition No.631/08 by Rashtriya Manganese Mazdoor Sangh and five other unions, including the petitioner union.

8. Said writ petition was disposed of on 30.1.08 in the following terms:

“Having regard to the aforesaid. I am inclined to dispose of this petition directing the respondent No.2 and 3 and the Competent Authority of the Union of India to take appropriate steps and to proceed further for grant of recognition to the Union which may be found eligible by way of secret ballot which is the prevailing practice for grant of such recognition as stated by the learned senior counsel for the petitioner.”

The aforesaid order was however modified in a Review petition: MCC 461/08 filed by the management that they were not heard. By modified order dated 19.2.08, following words from order dated 30.1.08 were deleted: viz., “by way of secret ballot which is the prevailing practice for grant of such recognition as stated by the learned senior counsel for the petitioner.” In the review petition it was also directed that the steps taken for secret ballot pursuant to the order dated 30.1.08 passed in W. P. No.631/08 shall stand nullified. A Writ Appeal No.305/08 and SLP (C) Nos. 15144/08 thereagainst were dismissed on 2.4.08 and 10.7.08, respectively.

9. That on 25.3.08, i.e. immediately after the decision in MCC 461/08 (decided on 19.2.08) the management of MOIL issued a letter to all the unions informing them that the verification of membership of Trade Union functioning in the establishment of MOIL will be done by physical checking method and not by the Secret Ballot.

10. That, two writ petitions W. P. No.4415/08 and W. P. No.8842/08 were filed against the decision by management of MOIL to conduct verification of the membership of the union through physical verifications and the results of physical verifications. These petitions were later on withdrawn on 25.11.10 and 27.6.11 respectively. The recognition granted to respondent No.5 by physical verification on 2.6.08 expired on 2.6.10. However, since there is no fresh recognition of representative union, respondent No.5 is continuing as representative Union. Impasse is because of absence of consensus regarding mode to be adhered to for recognition as representative Union.

11. That in view to resolve the dispute regarding the mode to be adopted for having a representative union in the MOIL and taking note of the opinion of the Chief Labour Commissioner(Central) vide Note. No.32/5/2006-Vfn dated 30.5.08, Government of India, Ministry of Labour and Employment vide its letter No.F. No.L-52025/12/2010-IR-1 dated 21.4.10, called upon the office of the Chief Labour Commissioner (C) to advice concerned Regional Labour Commissioner (C), Nagpur, to obtain consensus of all trade unions/management in writing through management of MOIL.

12. That in furtherance thereto, the consensus was sought by the Regional Labour Commissioner (Central) Nagpur vide his correspondence No.N-11(1)/2010 Vfn. Dated 1.6.10 and dated 3.6.10; whereby, the respective Trade Unions and the management of MOIL were required to furnish consent letter (i) for holding verification of membership of trade unions operating in the establishments of MOIL through “Secret Ballot” (ii) for 'Secret Ballot' being conducted under the supervision of CIRM officers and (iii) undertaking that the result of such 'Secret Ballot' shall be accepted as binding.

13. That five out of eight unions gave their consent in favour of secret Ballot system for recognition of representative unions and three unions and the management of MOIL opposed the secret ballot system. The Regional Labour Commissioner (C) Nagpur vide its correspondence dated 12.7.10 with the Government of India, Ministry of Labour and Employment, reported the outcome which is extracted as under-

“Here it is pertinent to mention that inspite of submission of desired 'consent' by the different trade union, the representatives of all trade unions have met the undersigned on different dates and discussed the matter of verification of membership of trade unions operating in the establishment of MOIL. The undersigned also visited the office of the MOIL on 29.6.10. and held detailed discussions with the CMD over the issue of verification of membership of trade unions operating in their establishment and tried to convince the CMD to hold the election of membership of trade unions through secret ballot, as because of the two years recognition terms granted to the MOIL, Kamgar Sangathan has already been over on 2.6.10. During course of discussions with the CMD on the said matter, he stated that at present since the industrial relation is cordial with the present recognized union of the management and there is no industrial unrest in the organization of the MOIL and also there is no breach of Code of Discipline by the said recognized union and this union is also having the largest membership amongst the employees of the Company i.e. 95.47% at mines situated in M. P. and Maharashtra. Hence they are not interest (sic. Interested) in holding the verification of membership of trade union through 'secret ballot.'..........”

14. Consensus having not been arrived at, the petitioners, apprehending indecisiveness on the part of Government of India and the management of MOIL, have filed this writ petition seeking direction to the respondents to immediately conduct the verification of the membership of the Unions operating in MOIL through Secret Ballot.

15. Record, will however, not be complete without taking note of decision taken in the meeting held on 29.3.11 under the chairmanship of Additional Secretary, Ministry of Labour and Employment to discuss the issue regarding verification to determine the strength of membership of Trade Unions through Secret Ballot. Besides, the officials of the Ministry of Labour and Employment, Ministry of Shipping and Transport, the representatives of Central Trade Union Organizations, viz., INTUC, Hind Mazdoor Sabha, SEWA, LPF, AICCTU, NFITU, CITU, AITUC, DMS, TUCC, AITUC and UTUC also participated. The decision taken is that:

(i)- For verification of membership of Trade Unions in any establishment the existing method adopted (Check of for secret ballot system) would be permitted to be continued and the existing 'recognized' Union would not have any veto power to stop that method.

(ii)- in case however, there is a demand for change in the method of verification (i.e. from check of to secret ballot system and vice versa), this can be adopted only if consent of all the parties is available.

(iii)- Consultations should continue so that a wider consensus is achieved through the ILC forum. Amendments in the Code of Discipline will also be deliberated upon and decided in that forum.

16. The said decision has been circulated vide No.152025/5/2011-IR (MP-1), Government of India, Ministry of Labour and Employment dated 8.4.11.

17. The petitioners claim that the best and the only method of recognition of a representative Union in the management of MOIL is by secret ballot system. It is urged that the system of Secret Ballot besides being democratic also protects the identity of the workers casting their votes as with the exposure of their identity the workers are exposed to the vagaries of rival unions. It is contended that in the year 2004 it was because of adhearing to the secret ballot system, that respondent No.5 Union was voted in as it got the majority vote in its favour, helping in sustaining industrial harmony. It is contended that having been voted as the majority Union through secret ballot system the respondent No.5 now is backing out from the system which paved its way to become a representative Union. It is urged that having been elected as a representative Union, with collective bargaining power being conferred the respondent No.5 has catered more membership which, it is contended, is not the decisive factor that it should continue to be the representative Union or that now the criteria should change for selecting the representatives Union from secret ballot system to physical verification or check off system. It is alleged that since respondent No.5 after its election as a representative union has towed with the management of MOIL, the management has also in most undemocratic manner, declined to give consent for the secret ballot system. The petitioners contend that the attitudinal change in the stand of the management of MOIL and the respondent No.5 it is urged, is not congenial to the management workmen relationship in the MOIL nor it is in larger interest. Referring to decision No. (I) taken in th meeting dated 29.3.11, circulated vide letter dated 8.4.11, it is urged that the respondent No.5 cannot veto the method (the secret ballot system) through which it got elected as the representative union. In furtherance to submission the petitioners have also placed reliance on the decision by the Supreme Court in Food Corporation of India Staff Union v. Food Corporation of India and others: 1995 supp. (1) SCC 678. The petitioner also contends that since two years have expired and there is no fresh election of a representative union the continuation of respondent No.5 as representatives by the management of MOIL is without any authority. The direction is thus sought to the management of MOIL as also to the functionaries of Union of India to immediately take recourse to Secret Ballot System for having/selecting a representative Union in MOIL.

18. Shri Vikram Singh learned counsel appearing for respondents No.1 to 3 on the basis of the relief sought and return filed, has to submit that the petition is premature, as the respondents No.1 to 3 have taken initiatives to conduct. Verification of membership through secret ballot. It is stated that in furtherance thereto a letter dated 3.6.10 was issued requesting respective unions to give their consent for ascertainment of a representative union through secret ballot. It is urged that responding to said letter five out of eight unions have given their consent for selection of representative union through secret ballot; whereas three unions and the management of MOIL expressed their unwillingness and gave consent for physical verification method.

19. It is urged that after receiving the report from the Regional Labour Commissioner (L) Nagpur a decision is to be taken and the matter is therefore, being processed for final decision. However, when quizzed whether in the wake of decision taken in the meeting held under the chairmanship of Additional Secretary, Labour and Employment on 29.3.11 and circulated vide letter dated 8.4.11, the Central Government will be able to impose the decision of selecting representative Union by Secret Ballot system in absence of a consensus, learned counsel appearing for the Union of India and respondents No.2 and 3 has no answer. The return is also silent on this issue. Learned counsel for the respondents No.1 to 3 however, still submit that when there is difference of opinion amongst the trade unions regarding the mode to be adhered to for electing a representative union, the Central Government can mandate that a particular mode be adhered to. Though it is stated in paragraph 15 of the return filed by respondents No.2 and 3 that the consent of majority of unions has been received for conducting the verification through secret ballot and the decision being taken. The fact however, remains that inspite of above stand in the return filed in 23.9.10, no decision seems to have been taken till date, as no such material is brought on record. Instead as apparent from the letter dated 8.4.11 the guidelines have been prescribed and circulated for strict compliance.

20. The guidelines stipulates that for verification of membership of Trade Unions in any establishment the existing method adopted, check off on secret ballot system, would be permitted to be continued and the existing 'recognized' union would not have any veto power to stop that method. It further state that in case if there is a demand for change in the method of verification from secret ballot to check off and vice versa the same can be adopted only if consent of all the parties is available and that consultations should continue so that a vider consensus is achieved through the Indian Labour Conference Forum and amendments in the Code of Discipline will also be deliberated upon and decided in that Forum. Thus unless there is consensus the Union of India cannot impose itself the mode for selecting a representative Union.

21. Respondent No.4 though has filed return stating therein that, the management of MOIL has favoured the physical verification for ascertaining the representative union. It is also not disputed that the present representative Union was voted in by method of Secret Ballot System. However, during course of hearing it is expressed by learned Senior counsel that the MOIL respondent No.4 will adhere to the decision taken by this Court.

22. Respondent No.5 which was voted in as representative Union on 25.5.04 on the basis of secret ballot system and subsequently was continued to be a representative Union from 2.6.08 till 2.6.10. In the year 2008 the management of MOIL adhered to physical verification system. It is contended on behalf of respondent No.5 that the opinion having been sought by letter dated 8.5.10, it has vehemently opposed the verification by the Secret Ballot as the same is contrary to Code of Discipline, the Trade Unions Act, 1926 and is unconventional. It is urged that, the respondent No.5 Union has the membership of 95.85% of the employees of MOIL and therefore, is entitled to negotiate with the management. So far it relates to protection of the interest of the workmen/members, it is urged that, the demand for secret ballot system for ascertainment of the representative Union by the Unions having less than 5% membership is without any basis. Referring to the decision by Full Bench of Bombay High Court in AIT India Employees Guild v. AIT India Limited: 2007 II LLJ 217, it is contended that adhearing to the method of secret ballot in the context of the procedure provided by the Code of Discipline as a method of determination of majority of membership of the Union in a particular period would be derogatory to the Code of Discipline. It is contended that in the year 2004 since there was consensus amongst the Unions and the management of MOIL the membership was verified through secret ballot, however, in the year 2008 the verification was through physical verification of the membership. It is further submitted that this method of verification i.e. by physical verification carried out in the year 2008 was though challenged in W. P. No.4415/08; the said petition later on 25.11.10 was withdrawn without any liberty or condition. It is urged that now the petitioner cannot raise a cavil regarding the existing mode of verification of membership, i.e. by physical verification. Learned counsel further stated that respondent No.5 is open to physical verification without Secret ballot, as the method of physical verification is much faster and authentic and less expensive.

23. Respondent No.5 further contends that, they since cater 95.85% of members and the petitioners have no membership worth enabling them to be a representative of the workers of MOIL, the effort to introduce the system of verification by Secret Ballot would create a disharmony not only amongst the workers but also with the management of MOIL and the harmony which exists will get derailed. It is urged that much before the expiry of term of two years, i.e. 2.6.10, the respondent No.5 Union had approached respondent No.1 for timely verification of membership. But because of non-cooperation by other Unions the verification could not be done.

24. Regarding recognition having been continued beyond two years, it is contended on behalf of respondent No.5 that the same is valid as there is no automatic cessation of a representative Union in the Code of Discipline. Reliance is placed on Clause 12 and 13 of Code of Discipline and Section 16 of Bombay Industrial Relations Act 1946 to bring home the submissions that there is no automatic cessation of status as representative union even after expiry of two years.

25. Responding to letter No. L-52025/13/96-IR Government of India, Ministry of Labour dated 10.8.2000 (Annexure P/13 filed along with rejoinder) whereby, the Secretary, Ministry of Labour has clarified that, in cases where recognized Unions have already enjoyed the status of representative union under the Code of Discipline for a period of two years, it is not necessary to consult all the trade unions including the recognized Union of the membership for the purpose of recognition, and such cases be reviewed and fresh verification undertaken, and that wherever the period of two years has expired, recognition of trade unions will not be valid beyond the period. It is urged by learned counsel for the respondent No. 5 that is always open for verification of membership by physical verification which was the practice in vogue in the MOIL except for a period 2004 to 2006 and 2006 to 2008. It is urged that since the Code of Discipline governs the field and till fresh recognition is not granted there is no automatic cessation of status of a representative Union. It is lawful for the management of MOIL to enter into negotiation with respondent No. 5. Having thus submitted it is contended on behalf of respondent No. 5 that the Management of MOIL may be directed to conduct verification of membership by physical verification as provided in the Code of Discipline.

26. Having thus heard, the issues which crop up for consideration are:

(i) Whether the method of secret ballot to ascertain the majority should be 19 taken recourse to or the ascertainment of majority should be on the basis of physical verification of membership.

(ii) Whether in absence of rerecognition as representative Union after expiry of two years, it will be lawful for the management to continue to negotiate with the Union whose term has expired.

27. There exists two mode of system adopted in various Central Industries for recognition of a representative Union enjoying the bargaining power, i.e., (i) Check off System or Physical Verification System and (ii) secret ballot system. The debate as to which is the best method for recognizing the representative Union, has been in vogue since the multiunionism has emerged in the industrial concern. And has acquired a prominent place even before the National Labour Commission.

28. Arguments in favour and against each of the two system was formulated by the Second National Commission of Labour, 2002, in the following terms:

“6.68. To put the arguments briefly, those who support the secret ballot urge; (1) that the system of secret ballot is what is used to elect a representative to the legislature or Parliament; (2) that it is a system that assures a democratic choice; (3) that the secrecy prescribed in it provides protection to the worker, from harassment by the management or other unions; and (4) that there is no better method to verify support. Those who support the check off system argue: (i) that the check off or authorization to deduct union subscriptions from wages clearly shows that the respective strength of unions: (ii) that unlike the secret ballot which only shows the preference at the moment, the check off system shows the continued support for the unions over a long enough period of time; (iii) that since the negotiating agent has to represent workers over a period of time till the next negotiations fall due, membership of the union is a far better and more reliable index than a secret ballot (which is more like a referendum); (iv) that the check off system promotes unionisation; (v) that the check off system does not involve any special expenditure for verification, whereas the administrative cost of a secret ballot, especially when it has to be held in a multi unit undertaking goes to crores of rupees and the development of a formidable number of polling officers; (vi) that this raises the question of the source from which Page 0010 the money to defray the expenditure on the secret ballot should come, whether it should be from the management or workers or the Government. The management is reluctant, and some times, unable to find such a large sum of money; the Trade Union does not have the resources, and the Government too is unwilling to find the money from the exchequer; (vii) that the campaign for a secret ballot disturbs the atmosphere, generates intense feelings of rivalry and acrimony and sometimes violent interludes in establishments which adversely affect and disrupt the tenor and volume of work done etc; and (viii) that it takes many days for the aftermath of the campaign to settle down.

29. The Commission after taking note of arguments for and against the two systems for recognizing a representative trade Union and after analysing the same opined in paragraph 6.69, 6.70, 6.71 and 6.72 as under-

6.69 The Commission carefully considered the advantages and disadvantages of the relevant options. In dealing with this issue, we had to keep in view our belief that collective negotiations require a strong trade union movement which, in its turn, demands an increasing degree of unionisation. Any formula which militates against increasing unionisation should, therefore, ab initio be avoided. Secret ballot as a method of identifying the negotiating agent raises the following questions : - Should the electorate for choosing the negotiating agent be the entire corpus of workers in the establishment/industry/region or should it be limited only to members of registered trade unions? If it is to be the latter, then in a situation where the total unionised strength is less than 50% of the work force, and this is the average scenario in our country, then a minority will be negotiating for the entire establishment/industry/region; on the other hand, if the entire workforce were to participate, then it I argues this may; weaken the urge or inducement for nonunionised workers to become members of one or other of the trade unions.

6.70. Also,. secret ballot even on a restricted basis is logistically and financially a difficult process in industries like railways, banks, post offices, coalmines and other undertakings operating in a number of states. It has been shown that the expenses run into crores of rupees. For instance, we are informed that in the case of the Food Corporation of India (F.C.I.) the identification of the negotiating agent through secret ballot amongst 50,500 employees undertaken during 2002 involved an expenditure of more than 50 lakh rupees, and the deployment of 3,000 returning officers and polling staff.

6.71. A check off system has the advantage of ascertaining the relative strengths of trade unions based on continuing loyalty reflected by the regular payment of union subscription, even if such subscriptions are deducted from the wages as permitted under the Payment of Wages Act, 1936. Also, the check off system by and large, avoids the incidence of dual membership under which, for a variety of reasons, a worker may become member of more than one union. Given the low level of unionisation in India, neither the check off system nor the secret ballot confined to members of registered unions is like to throw up a negotiating agent which commands the support of the majority of workers, excepting in industries and establishments where the degree of unionisation is very high. The argument advanced against the check off system is that Page 0011 it exposes the loyalty of the worker, and this may make him vulnerable to victimisation by the management or persecution by members of other unions. We feel that this argument does not have much force today, when conscientisation and legal rights have more or less done away with the fear that workers had in the early days of trade unionism in the country. Today, it is commonly accepted even by employers that workers have the freedom to join trade unions of their choice. There may be exceptional cases of victimisation and vendetta. But they are exceptions, and not the vogue.

6.72. We have given consideration to all these arguments and come to the conclusion that the check off system should be the general pattern, and wherever there is legitimate apprehension that the system may not achieve the purpose of verification or may create the possibility of victimisation, it should be open to unions to petition the Labour Relations Commission to determine the method that should be adopted in a particular instance.

30. It will therefore, be clear from the recommendation that the physical verification has been preferred to that of Secret Ballot System. Reasons, as obvious are not for to be fetched. In an election by a Secret Ballot, no doubt the identity is not disclosed; however, in absence of any mechanism of ensuring a compulsory voting and the fact that the majority is drawn out on the basis of a voting on a day does not ensure that the Union which has been voted in actually enjoys the majority support in terms of Unionism and not individual manner. It is the collective whole and not the individual being which is important in respect of bargaining agent in an industrial concern wherein the well being of workmen, who are at the receiving end, which is of greater concern. It is the collective representation on the basis of affirmed membership which reflects the actual strength of the Union.

31. Reference can be had of following observation by their Lordships in Automobile Products of India Employees' Union v. Association of Engineering Workers, Bombay and others : (1990) 2 SCC 444:

“7. It is further a common knowledge that although since long there was a strong demand from some sections for recog- nising the bargaining agent of the workmen by a ballot secret or otherwise, the National Labour Commission did not countenance it for certain obvious reasons. It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, to industrial peace and stability endangering the interests of the workers, the employers and the society as a whole. It was feared, and from what has become almost a normal feature today, we can say rightly, that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife, stoppage of production and even closure of the establishment with a consequent loss of production and employment. It was, therefore, thought prudent in the interests of stable industrial relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent, with a guarantee of unin-terrupted loyalty of its members and an unquestionable representative character over a certain period of time. That is why the concepts such as "recognised union" or "represen- tive union" emerged and along with it the machinery to determine it. The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time. This could be ensured by them by continuing their membership of the union over a specific period. The continu- ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle- giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts. It is in the light of this background that we have. to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions.”

32. In the case at hand in MOIL, the Code of Discipline is applicable.

33. The Code of Discipline has emerged from a consensus on the part of Industries and Unions to recognise the union holding majority membership. This need was felt to avoid multiplicity of unions and to act as a sole collective bargaining agent so that as far as possible there would be one union speaking on behalf of the workmen in the industry or establishment as the case may be. The Code of Discipline aims to achieve that collective bargaining should rests with the majority Union to avoid conflicting demands of minority unions some time totally irrelevant which result in hampering the industrial harmony.

34. The Code of Discipline lays down certain criteria for recognition of unions by the Management on a voluntary basis. Procedure for verification of membership of Union to determine their representative character, has also been approved by the Standing Labour Committee. Clause III (vii) of the Code of Discipline (Appendix 1) requires management to recognize the Union in accordance with the criteria for recognition of Union prescribed therein.

35. The Code provides fo r two types of recognition(a) A Union can claim to be recognized as representative Union for an industry in a local area; or (b) it can claim recognition as majority Union in an establishment on fulfillment of certain conditions. Where there is only one Union if the same is not found responsible for breach of the Code during period of one year immediately before claiming recognition subject to the condition that (i) a Union not affiliated to any of the four Central Workers' Organizations should wait for a period of one year after accepting the Code of Discipline before its request for recognition can be considered and (ii) A breach of the Code of Discipline should be established by concerned Implementation Committee and not the Implementation Machinery for considering whether or not it was entitled to claim recognition.

36. In case where there are several Unions in an industry or in establishment as the present case is, the one with the largest membership and fulfilling the conditions mentioned in paragraphs 4 to 8 of clause

(I) of Code of Discipline would be recognized as representative Union. Clauses 4 to 8 stipulates:

“(a) Recognition as a representative union for an industry.

4. A Union can claim to be recognised as a representative Union for an industry in a local area if -

(i) it has been functioning for a period of at least one year after registration under the Trade Unions Act.

(ii) It considers that it commands a majority of membership in any case not less than 25 % of the workers in that industry in that area.

(iii) it has not been found responsible for a breach of the Code during the period of one year immediately before claiming recognition.

(iv) the existing recognised representative union, if any, has completed a period of two years after recognition under the code.

5. For the purpose of defining an industry, the classification of industries (Appendix II) used by the Labour Bureau, Simla is to be adopted and industry would mean any business, trade, undertaking, manufacture of calling of employee including any calling, service, employment, handicraft or industrial occupation or avocation of workmen.

6. The term 'local area' occurring in the criteria is to be defined by the concerned appropriate Government.

7. A representative union has the right to represent workers in all the establishments in the industry but if a union of workers in a particular establishment has a membership of 50% or more of the workers of that establishment it would have the right to deal with matters of purely local interest such as the handling of grievances pertaining to its own members. All other workers who are not members of that union might either operate through the representative union or seek redress directly.

(b) Recognition as a majority union in an establishment

8. A union can claim to be recognised as a majority in an establishment if -

(i) it has been functioning for a period of one year after registration under the Trade Unions Act.

The requirement need not be fulfilled if it is the only union in the establishment.

In case of branches of a union recognized under the Code as a representative union for the industry, the qualifying period of one year is not to be insisted upon for granting recognition to the brach union at the unit level provided it satisfies the prescribed membership qualification and is operating in the same local industry as the representative union.

(ii) it considers that it commands a majority of membership – in any case not less than 15 % - of the workers of that establishment.

(iii) it has not been found responsible for a breach of the Code within one year immediately before claiming recognition;

(iv) the existing recognized union, if any, in the establishment has completed a period of two years after recognition under the code.”

37. That, the criteria for recognition of Unions has been laid down in Appendix I whereas procedure for verification of memberhip of Union for the purpose of recognition under Code of Discipline is laid down in Appendix III as under:-

“(1) On receipt of a representation from a union for recognition under the Code of Discipline, the Central/State Implementation Machinery will first ascertain:-

(a) the names of unions functioning in the establishment together with their members and date of registration by reference to the Registrar of Trade Union concerned;

(b) whether any of the Unions functioning in the establishment was responsible for an established breach of the Code during the past one year. (by an established breach of the Code, is meant a breach reported to and on enquiry established by the Implementation Machinery of the State of the Centre);

(c) whether the existing recognized union, if any, has completed a period of two years of recognition.

(2) After ascertaining the above facts, the Implementation Machinery at the Centre will request the Chief Labour Commissioner to arrange verification of membership of unions entitled to recognition under the Code. In the States, either the Implementation Officer will carry out this verification or get it done through the State Labour Commissioner, depending on the practice obtaining in each State.

(3) The verification officer will ask the Union by registered post/A.D. To produce before him within 10 days, at the stipulated place and time, a list of their members who have paid subscription for at least 3 months during the period of six months immediately preceding the date of reckoning along with (i) membership-cum-subscription register, (ii) receipt counterfoils, (iii) cash and account books, (iv) bank books and (v) a copy of the constitution of the union. If the number of members of a union is more than 10,000 a longer time on the basis of one additional day for every 2,000 members over 10,000 should be given for submission of its list of members and records.

If any of the unions fails to produce the lists of its members and records, a second and final notice will be given by registered post/A.D asking it to produce them within 10 days or a longer period as mentioned above, if the membership of the union exceeds 10000 at the stipulated place and time. If the union fails to produce the list and records on the second occasion also, no further attempt will be made to verify its membership. However, in respect of the union which has submitted its list and records, the verification officer will examine them and report its membership without inviting objections from the rival union, i.e., the defaulting union, and without doing any personal verification as mentioned in para (7) below. If more than one union produces its list and records, the verification officer will check their membership in the manner described below, ignoring the union which fails to produce its records.

(4) The date of reckoning mentioned in para (3) above will be taken as the first of the month in which verification begins, i.e. when the verification officer asks the unions to submit their lists and books for scrutiny.

(5) The verification officer will then check the list of members with the membership register and receipt counter foils and exclude those who have not paid three months' subscriptions during the period of six months preceding the date of reckoning. This examination will be 100% and will be done in the presence of the office bearers of the union concerned but not in the presence of the office bearers or representatives of the rival union. If the union objects to the examination of any member from its membership register, it will have to give full and valid reasons for such an objection. The verification officer will then recheck the records (i.e., membership register, receipt books, etc.) to ascertain the correct position. The verification officer will scrutinize barefully the cash and accounts books as well as the bank book maintained by a Union to ascertain that the amount of subscription shown to have been received has been properly accounted for and that the amounts received as subscription are not incompatible with the total number of persons shown in the register and the list furnished by the union. The verification officer will also ensure that only those workers Muster Roll of the management on the date of reckoning.

(6) The verification officer will thereafter intimate in writing, to the unions concerned that the verified lists of their respective members are ready for inspection by the union representatives at an appointed time and place. The unions will also at the same time be informed that after inspection of the verified list of members of the rival union(s) they should send, in writing, their specific objections, if any, to the entries in these lists, within 10 days or a longer period if the number of objections is likely to 2000 objections over and above 10000 of the date of inspection. It should be made clear to the unions that vague objections like inflated membership, etc. will not be considered, the objections should give names of persons whose membership of a union is objected to an the reasons therefor.

The union representatives will be allowed to make notes from the verified lists shown to them in the presence of the verification officer; they will, however, not be allowed to take any of the lists nor a copy of the lists will be given to them.

(7) The objections received from the unions will then be verified by personal interrogation, by the verification officer, or the members on the basis of the following systematic sampling system:_

(i) if the objection list furnished by a union consists of 500 or less names of the members, the number of persons to be personally interrogated should be 20% subject to a minimum of 100;

(ii) if the objection list furnished by a union consists of more than 500 but not more than 1000 names, the number of persons to be personally interrogated should be 15% subject to a minimum of 100;

(iii) if the objection list furnished by a union consists of more than 1000 but not more than 2000 names the number of persons to be personally interrogated should be 10% subject to a minimum of 150;

(iv) if the objection list furnished by a union consists of more than 2000 but not more than 5000 names, the number of persons to be personally interrogated should be 5% subject to a minimum of 200; and

(v) If the objection list furnished by a Union consists of more than 5000 names, the number of persons to be personally interrogated should be 2 % subject to minimum of 250.

The persons selected for personal interrogation should among other things be asked whether they are members of a particular union and whether they had aid subscription for 3 months within a period of 6 months from the date of reckoning and, if so, the amount of subscription paid, the months for which it was paid, etc. The verification officer will maintain a list of members personally interrogated, giving their ticket numbers, name of section where working, the result of personal interrogation, etc.

(8) Where the sample check reveals that certain members interrogated deny membership of union, its list of members will be modified proportionately. For example, if on checking records, it is found that a union has 2000 valid members and the rival union objects to, say, 800, of these members, a 15% of sample of the latter has to be drawn, i.e., 120 persons have to be interrogated personally. If on personal interrogation it is found that 30 of the 120 persons (i.e., 25%) deny membership of the union, the strength of the union will be reduced by 25% of 800 persons whose membership was objected to, i.e., by 200. In other words, the final strength of the union will, in this case be 1800.

If the persons who, on interrogation, deny their membership of the union claiming them as their members inform the verification officer then that they are members of a rival union, the verification officer will check their membership with the list of members and records of that union and adjust its list accordingly, i.e., their names will be added to the list of the rival union if they are not already included in it, and excluded, in the manner mentioned above from the list of the claimant union.

(9) While conducting personal verification, as mentioned in para (7) above, the verification officer will not allow the representatives of any union or management to be present.

(10) The verification officer will report his finding to the Central/State Implementation Machinery which in turn will communicate its decision to the management as well as to the unions. In his report the verification officer also indicate the total number of workers in the establishment and the percentage of verified membership.”

38. Thus, as apparent, exhaustive procedure for verification of membership of Unions for the purpose of recognition under the Code of Discipline has been laid down to be adhered to before Union is recognized as representative union. It is pertinent to note that no other procedure or mode has been laid down in the Code of Discipline for the purpose of recognition of representative Union. It is also not disputed by the parties to the lis that procedure for recognition of representative Union in the MOIL is not regulated by statutes, i.e., Bombay Industrial Relations Act, 1946, Maharashtra Recognition of Union and Prevention of Unfair Practice Act, M.P. Industrial Relations Act, 1960. It is also not in dispute that there is no provision in the Trade Union Act, 1926 and Industrial Disputes Act, 1947 which provides for procedure for recognition or verification of membership of a Union or as to who holds majority of membership in the industry or establishment. In absence whereof it is the procedure prescribed under the Code of Discipline which will have to be adhered to. Since exhaustive procedure is prescribed under the Code of Discipline (under Appendix III) to recognize a Union having a majority over a certain period, replacement of same by new system of secret ballot in the considered opinion of this Court will not be in consonance with the object of having an agency for collective bargaining. The petitioner having failed to establish any arbitrariness in the procedure prescribed as per Appendix III to the Code of Discipline for recognition of a representative Union cannot seek a mandamus merely on the count that petitioner thinks that secret ballot system is more broad based. Broad based it may be, but it reflects the majority gained on the day of polling and does not reflect that the Union which is to be voted in had enjoyed the majority membership over a period of time.

39. That, the issue as the present one was also a subject matter before Full Bench of High Court of Bombay in Air India Employees Guild v. Air India Ltd. and others [2007-II-LLJ p.279]; wherein the Full Bench while answering the issue as to whether method of secret ballot to ascertain majority is derogatory to the Code of Discipline held:

“17. On a consideration of the provisions and the judgments, what follows is that secret ballot would only indicate preference of an individual employee on the date the secret ballot is held for a particular union, even if he be not its member. It cannot be a method for verification of membership of the union in terms of the Code of Discipline for the particular period of verification of membership. The method of secret ballot for ascertaining majority of membership is therefore, derogatory to the code of Discipline.”

40. This Court respectfully agrees with the conclusion arrived at by the Full Bench of Bombay High Court.

41. In view whereof neither the Union of India nor the management of MOIL can be directed to adhere to secret ballot system for ascertaining the embership of a Union to be recognized as a representative Union. Instead since Code of Discipline is applicable in MOIL, incumbent it is on the part of management of MOIL to instantly take recourse to the method as is prescribed in Appendix III of Code of Discipline for the purpose of recognizing a representative Union.

42. The next question which remains to be answered is as to whether after expiry of two years for which a Union is recognized as representative Union, in absence of fresh nomination, the said Union would continue to discharge the functions as a representative Union. No provision in the Code of Discipline has been shown by the petitioners that, with expiry of two years there is automatic cessation of status of a representative Union. In absence whereof this Court is of considered opinion that till a Union is recognized as a representative Union, it will be lawful for the management of MOIL to negotiate with the existing representative union. The existing representative Union would mean the Union which was recognized as representative Union and its term has expired and a Union yet to be recognized as representative Union for fresh term.

43. In view whereof the negotiation arrived at between the Management of MOIL with respondent No. 5 after the expiry of period of two years which expired on 2.6.2010 cannot be held to be invalid as claimed by the petitioner.

44. Having thus considered, this Court is of the opinion that the respondent Nos. 1 to 3 cannot be directed to adhere to the system of secret ballot for recognition of a representative union in MOIL. Instead, the MOIL and the unions registered with it are under obligation to adhere to the Code of Discipline. In case of any mal-practice resorted to during the course of procedure adhered to for recognition of representative Union as per Appendix III of the Code of Discipline, it will be open for rival Union to raise such dispute before the competent authority.

45. The petition is finally disposed of in above terms. Parties to bear their own costs.