IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938 WP(C).No. 33441 of 2010 (E) PETITIONER(S): THE COCHIN REFINERIES EMPLOYEES' ASSOCIATION (REG.NO.120/67), AMBALAMUGAL, KOCHI-682302, REPRESENTED BY ITS GENERAL SECRETARY, P.N.SURENDRAN NAIR. BY ADVS.SRI.C.S.AJITH PRAKASH SRI.T.ISSAC SRI.V.MADHUSUDHANAN SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): 1. THE BHARAT PETROLEUM CORPORATION LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, BHARAT BHAVAN, 4&6, CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI 400 001. 2. THE DIRECTOR (HR), BHARAT PETROLEUM CORPORATION LTD., BHARAT BHAVAN, 4&6, CURRIMBHOY ROAD, BALLARD ESTATE MUMBAI 400 001. 3. THE GENERAL MANAGER (HR), BHARAT PETROLEUM CORPORATION LTD., KOCHI REFINERY, AMBALAMUGAL, KOCHI-682302. 4. THE REFINERY EMPLOYEES UNION (KRL), REPRESENTED BY ITS GENERAL SECRETARY, AMBALAMUGAL, KOCHI-682302. * ADDL.R5 & R6 IMPLEADED 5. COCHIN REFINERIES WORKERS' ASSOCIATION, REG.NO.7-82/91, VPP 1/427, AMBALAMUGAL, COCHIN-682302, REPRESENTED BY ITS JOINT SECRETARY. ADDL.R5 IS IMPLEADED AS PER ORDER DATED 4/1/11 IN IA.NO.16978/2011. PJ 2/- 2 WP(C).No. 33441 of 2010 (E) 6. KOCHI REFINERIES WORKERS UNION, REG.NO.07-10/05, AMBALAMUGAL-682302, REP.BY ITS GENERAL SECRETARY, AMBALAMUGAL, KOCHI. ADDL.R6 IS IMPLEADED AS PER ORDER DAED 4/1/11 IN IA.NO.17855/2010. R1 TO3 BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI R4 BY ADV. SRI.P.RAMAKRISHNAN R5 BY ADV. SRI.TOM K.THOMAS R6 BY ADV. SRI.THAMPAN THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 33441 of 2010 (E) APPENDIX PETITIONERS' EXHIBITS P1: COPY OF THE CIRCULAR NO.HRS.S.LTS.CON DATED 22/5/2008 ISSUED BY THE CHIEF MANAGER, HRS OF THE R1 COMPANY P2: COPY OF THE REPRESENTATION DATED 11/5/09 SUBMITTED BY THE PETITIONER TO THE R2 P3: COPY OF THE CIRCULAR NO.TU/02/2009 DATED 1/7/2009 ISSUED BY THE R3 P4: COPY OF THE JUDGMENT DATED 10/12/2009OF THIS HON'BLE COURT IN [CASE NUMBER] P5: COPY OF THE JUDGMENT DATED 8/2/10 OFTHIS HON'BLE COURT IN [CASE NUMBER] P6: COPY OF THE NOTICE DATED 11/8/10 ISSUED BY THE SENIOR MANAGER (IR) OF THE R1 P7: COPY OF THE NOTICE DATED AND 19/8/10 ISSUED BY THE SENIOR MANAGER (IR) OF THE R1 P8: COPY OF THE REPRESENTATION DATED 5/10/10 SUBMITTED BY THE PETITIONER TO THE R3 P9: COPY OF THE NOTICE DATED 19/10/10. P10: COPY OF THE REPRESENTATION SUBMITTED BY THE DEPONENT ON BEHALF OF THE UNION P11: COPY OF THE RECORD OF NOTES OF DISCUSSION WITH THE BPCL MAZDOOR SANGH (BMS) DATED 3/6/16. RESPONDENTS' EXHIBITS R4(A): COPY OF THE LETTER DATED 3/10/02 WRITTEN BY THE PETITIONER TO THE REGISTRAR OF TRADE UNION R4(B): COPY OF REPORT DATD 1/11/02 OF THE ALO, PERUMBAVOOR R4(C): COPY OF LETTER DATED 3/10/03 OFFERING THE STATUS OF RECOGITION TO THE R4 R4(D): COPY OF LETTER DATED 7/10/03 GRANITING FORMAL RECOGINITION TO THE R4 R4(E): COPY OF SCHEME OF AGALGAMATION R4(F): COPY OF COMPLAINT DATED 25/11/09 SUBMITTED BEFORE THE ASSISTANT LABOUR COMMISSIONER (CENTRAL). / TRUE COPY / PJ P.S. TO JUDGE [ENTITY], J. [CASE NUMBER] Dated this the 23rd day of August, 2016 J U D G M E N T
The petitioner is concerned with the implementation of the policy as revealed in Ext.P3, which the management is said to have undertaken before this Court as recorded in Ext.P4 judgment. The petitioner, in effect wants this Court, to issue a mandamus against the Management Company to ensure that no Union of workmen other than the Unions having at least 25% representation of the total workmen are called for negotiations. The petitioner Union, who admittedly has around 36% representation of the total workmen, rely on the undertaking seen from Ext.P4, made by the Management Company. Ext.P4 was passed in a writ petition filed by the additional 6th respondent against the policy decision of the Management, as revealed from Ext.P3. Learned counsel for the petitioner also relies on a decision of the Hon'ble Supreme Court in Food Corporation of India [CASE NUMBER] - : 2 :-
[PRECEDENT] to urge that the intention behind a Trade Union having majority representation, being called for negotiations, is to maintain industrial peace and to ensure that the majority will binds the workmen.
2. Learned Counsel for the 6th respondent Union submits that there is no right on the petitioner to seek implementation of a letter as seen at Ext.P3 nor can the management be held down to the undertaking merely because they had decided to include the other representative Unions also in the negotiation. Reliance is placed on the decision in [PRECEDENT] wherein it was categorically held that a writ would lie only for enforcement of any of the rights conferred by [SECTION] of the [ACT] or for any other purposes.
3. It is trite that a mandamus would issue only when there is available a right and a corresponding duty imposed on the authority; which the authority has failed to discharge Dr.[PRECEDENT]. In the present case what the petitioner Union seeks is to ensure that [CASE NUMBER] - : 3 :-
Unions having representation of 25% of workmen alone are called to the negotiating table. It cannot but be immediately observed that, it is the Management's prerogative to decide on who should be called to the negotiating table, subject only to the reservation that the majority-Unions necessarily have to be participated in the negotiation.
4. As can be seen from [PRECEDENT] the Trade Unions owe their very existence to further the cause of collective bargaining and only a settlement entered into with a majority Union or Unions would have a binding flavour as provided in [SECTION] of the [ACT] ([ACT] for short). The first requirement as declared is a registration under the [ACT]; which the 6th respondent has. The cited decision is an authority for the above and then devises a method by which an election (referendum) could be conducted by 'secret ballot' to pin point those Unions having representation and confidence of the majority of workmen. This exercise was on the request made by the parties therein; definitely worthy of emulation in a situation warranting such identification. The decision does not at all further [CASE NUMBER] - : 4 :-
the cause ventilated by the petitioner herein; to keep out the 6th respondent who has about 15% representation of the workmen. The mere fact that certain representative Unions did not have workmen, to the extent as declared in the policy of the Management, cannot be an impediment on the Management calling such Unions also to the negotiating table.
5. The [ACT] and the conciliation contemplated there, as also the binding nature of a settlement arrived at with the majority Unions, is designed in such a manner to ensure industrial peace. There can hence be no claim raised by an individual worker or a minority Union, to be called to the negotiating table. The prerogative to call majority Unions only to the negotiating table, is on the Management, so as to avoid solitary and disparate claims being raised, which do not affect the majority of workmen. However, if the management decides to call, even a Trade Union which do not have a representation as required in Ext.P3, it cannot be said that there is any illegality perpetrated.
6. As has been noticed, the petitioner who is a Trade Union having around 36% of representation has a right to be called to the negotiating table but does not have a right to say that none [CASE NUMBER] - : 5 :-
or any others should not be called for such negotiations. The collective bargaining exercise is made more effective by inviting even a minority Union for negotiations, especially when the Management decides so to do. The decision so taken definitely is grounded on the view of the Management; that such participation would not delay the negotiations or impede the signing of an agreement.
7. In such circumstance, this Court is not inclined to exercise extra ordinary jurisdiction, so as to prevent a Union having substantial representation but not up to 25% being invited to the negotiating table by the Management. The right conferred on a majority Union as per the [ACT] and based on the policy, is confined, to be invited for negotiations. There can be no right claimed to prevent a minority Union from being invited for negotiations. A settlement entered into with a minority Union alone, would have no statutory force, on the majority of workmen, but that cannot lead to a total bar from participation of such Union, if desired by the Management.
8. The learned counsel for the petitioner also submits that being a Company registered in Mumbai, the Unions within the State of Maharashtra are called to the negotiating table only in [CASE NUMBER] - : 6 :-
accordance with the prescriptions under the [ACT] and the Head Office adopts a uniform policy all over the Country with respect to the various Unions and this has to be applied to the Refinery in the State of Kerala also. This is a matter of internal adjustments which the Management is directly concerned with and in the case of the Refinery in the State of Kerala, the negotiations are done by the Management having regional control over the affairs of the Company. The caveat so put forth by the petitioner is also of no avail, for reason of the conclusions arrived herein before. The functions of the Management are best left to them and a Trade Union cannot dictate terms or claim monopoly to be participated in the conciliation proceedings under the [ACT].
The writ petition is dismissed. No costs.
[ENTITY] , Judge al/-