IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.03.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.23725/2008 & M.P.Nos.1,2&3/2008 Ranipet Greaves Employees Union (Regn. No.624/NAT) Rep. by its General Secretary, 6/343, BHEL Anna Nagar, Seekarajapuram, Ranipet. ... Petitioner -vs- 1.The Commissioner of Labour, DMS Complex, Teynampet, Chennai – 600 006. 2.Labour Officer-I Krishna Nagar, Vellore -1 3.Greaves Employees Development Union, Rep. by its General Secretary, No.22, Basha Street, Ranipet – 632 401. 4.Greaves Mazddor Sangam Rep. by its General Secretary, No.6, Kanar Kaikaran Street, Thoppu Kanna, Arcot, Vellore District. 5.Greaves Labour Union, Rep. by its Secretary, No.20 A, Velumudaliyar Street, Ranipet – 632 401. 6.The Management of Greaves Cotton Ltd, Light Engineer Unit – II, No. 72, Sipcot Industrial complex, Ranipet – 632 403 Rep. by its General Manager- Manufacturing & 6 others. ... Respondents (R6 impleaded as per Court order dated 04.12.2009 in M.P.No.1/2009) Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the respondents 1 and 2 to conduct the election by secret ballot to enable the workers of Greaves Cotton Ltd. factory at Ranipet, to elect their https://hcservices.ecourts.gov.in/hcservices/ representative body for recognition. For Petitioner : Mr.V.Prakash Senior counsel for Mr.D.Anbarasu For Respondents : Mr.P.Subramani AGP for RR1 – 2 Mr.G.B.Saravanabhavan for R3 Mr.A.L.Soyamajee Senior counsel for Mr.G.R.Swaminathan & Usharaman for R4 Mr.Balan Haridoss for R5 Mr.Sanjay Mohan for M/s.S.Ramasubramaniam Associates for R6 O R D E R By consent the main writ petition is taken up for disposal. The prayer in the writ petition is for issue of writ of mandamus to direct the respondents 1 and 2 to conduct the election by secret ballot to enable the workers of the sixth respondent management to elect their representative body for recognition and for further appropriate directions. 2. The petitioner is a registered Trade Union bearing Reg. No.624/NAT and according to the petitioner, they enjoyed the confidence of majority of workmen, namely 240 workmen out of the 390 employed in the sixth respondent factory. A settlement under Section 12(3) of the Industrial Dispute Act (hereinafter referred to "as the Act") was entered into on 09.08.1990. In terms of such settlement election has to be held to elect one Union, which gets majority votes, which will be recognized by the management and such recognized Union shall be the sole negotiator with the management in respect of all issues concerning the workmen. That elections were conducted once in two years and the settlement had been working well for nearly 18 years. The last of such election, which was by secret ballot was conducted during 1999 and the Union had a two year term during which it was recognized and after the expiry of the term in 2001 elections were not held. The petitioner union therefore requested the second respondent to conduct elections in terms of the Section 12(3) settlement. By reply dated 08.03.2002, the second respondent declined to conduct election by secret ballot since, the respondents 3 and 4 who are also trade Unions did not agree for election by secret ballot. 3. The petitioner filed a writ petition before this Court in W.P.No.33200/2002 to quash the proceedings of the second respondent dated 08.03.2002 and to direct the respondents 1 and 2 to conduct Union election to elect a representative body and accord representatives in the sixth respondent factory. The fifth respondent in this writ petition was also a petitioner in W.P.No.33200/2002 along with the petitioner Union. The third respondent and fourth respondent herein were also the third and fourth respondent in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.33200/2002. The management was not impleaded as a party respondent. This Court by order dated 05.09.2003 allowed the writ petition and quashed the order of the second respondent dated 08.03.2002 and directed the respondents 1 and 2 to conduct the Union elections to elect a representative body of the workers to accord representatives in the sixth respondent factory within a period of eight weeks from the date of receipt of the order. The respondents 3 and 4 filed W.A.No.3110/2003 against the order in the writ petition. The Hon'ble Division Bench while entertaining the writ appeal granted interim stay of the order made in W.P.No.33200/2002. The order of interim stay was in force till the writ appeal was dismissed on 24.08.2006. After the writ appeal was dismissed, the respondents 1 and 2 conducted elections by secret ballot on 10.10.2006 and the total number of votes polled was 302 and the petitioner Union secured 281 and the others secured 21. Therefore, the petitioner was considered as the recognized Union being a representative body to represent the workmen. 4. On 30.12.2006, the previous wage settlement entered into between the Union and the management expired and the petitioner terminated the settlement and raised fresh charter of demands. The conciliation proceedings between the Union and the management failed and thereafter the Government referred the matter for adjudication before the Industrial Tribunal and the same is pending as ID No.20/2008 on the file of the Industrial Tribunal, Chennai. Subsequently, by representation dated 29.08.2008, the petitioner requested the first respondent to conduct elections in terms of the order passed in W.P.No.33200/2002 by stating that the last elections were conducted was during 2006 and the period of two years would expire on 09.10.2008 and therefore, requested for conduct of elections. Copy of the Judgment in W.A.No.3110/2003 and the results of the election held on 10.10.2006 as intimated by the second respondent were enclosed along with the representations. Since no action was taken on the representation, the petitioner union is before this Court by way of this writ petition. 5. In this Writ petition, the management was not initially impleaded as a respondent, subsequently, the management filed a petition in M.P.No.1/2009 to implead themselves and this Court by order dated 04.12.2009, impleaded the management as the sixth respondent in the writ petition. A counter affidavit has been filed by the respondent management inter-alia contending that the present management took over the sixth respondent factory from M/s.Enfield India Limited on 01.02.1994 and the sixth respondent employs 314 permanent workmen and that the workmen are represented by four Unions, namely the petitioner and the respondents 3 to 5. The settlement entered under Section 12(3) of the Industrial Dispute Act on 09.08.1990, expired in 1992 and thereafter the management entered into three Memorandum of Understanding (MOU) between the petitioner https://hcservices.ecourts.gov.in/hcservices/ Union and the respondents 3 to 5 on 18.05.1995, 09.09.1997 and 06.08.1999. The third respondent Union was not a signatory to the MOU dated 18.05.1995, and the respondents 4 and 5 were not parties to the MOU dated 06.08.1999, the petitioner was a party to all the three MOUs. 6. It is further submitted that under the MOU dated 06.08.1999, a provision was made for selection of a committee, which is in the nature of a representative body and under the said MOU, the previous two MOUs dated 18.05.1995 and 09.09.1997 were accepted. This committee which was agreed to be constituted was termed as the negotiating council. The negotiating council entered into a wage settlement on 21.12.1999 under Section 12(3) of the Industrial Act and after the settlement out lived its purpose and completed its obligation arising therefrom, there was no continuing obligation upon the parties much less upon the management. It is further stated that a settlement under Section 12(3) of the Industrial Act was entered into dated 20.04.2004 with the respondents 3 and 4 and this wage settlement is stated to have been implemented by all workmen of the sixth respondent management including the workmen belonging to the petitioner Union. 7. It is further submitted that the management was not a party to W.P.No.33200/2002 and did not have an opportunity to put fourth its views or bring to the notice the question of interpretation of the settlement and in such circumstances the prayer sought for by the petitioner Union is unjustified, when the sixth respondent management is willing to talk to all unions. It is further submitted that on 02.01.2007 a dispute was raised by the petitioner union and ultimately an award was passed in ID No.20/2008, which is subject matter of challenge in W.P.No.4697/2005. It is the further case of the management that the settlements dated 09.08.1990, and the MOUs dated 18.05.1995, 09.09.1997 and 06.08.1999 have been terminated by the management and the management by letter dated 30.10.2008 requested the second respondent to permit them to negotiate with all Unions and the said letter is still pending before the second respondent. Further the management would contend that the writ of mandamus would not lie in the nature as prayed for by the petitioner since, there is no legal right in the petitioner to seek recognition and since the management was not a party to the earlier writ petition as well as the Writ Appeal, the same would not bind the management and the elections held in 2006 would not be a legal compulsion upon the management at this point of time and in the absence of any statute in the State of Tamil Nadu compelling grant of recognition to any Union, there is no legal right for the petitioner to seek for elections by secret ballot for recognition. That even under the Section 12(3) settlement dated 06.08.1999 it provided for only a committee and there is no continuing obligation upon the management in this regard. Based on the above grounds the sixth respondent https://hcservices.ecourts.gov.in/hcservices/ prayed for dismissal of the writ petition. 8. The third respondent union would contend that the writ petition is not maintainable in law and the recognition granted to the petitioner union lapsed on 09.10.2008 and since the earlier settlements were terminated, the petitioner cannot rely upon the same. It is further contended that a private dispute has been brought before this Court by impleading the respondents 1 and 2 and a trade Union is neither an instrumentally or an agency of state and no public duty is discharged and no public function is discharged and not amenable to the jurisdiction of the Court under Article 226 of the Constitution of India. Therefore, the third respondent prayed for dismissal of the writ petition. 9. The fourth respondent union would contend that there is no inherent right for the petitioner union and there is no statutory Rule for claiming relief in the writ petition. In the absence of any statutory Rule to sustain such relief, no writ of mandamus could be issued as prayed for by the petitioner. It is further contended that the second respondent is only a conciliation officer and in the absence of conciliation between workmen and the management, he could only submit a failure report and intimate the failure of conciliation and he cannot be directed to conduct elections by issuing a writ of mandamus. Thus, it is contended that the petitioner union is indirectly seeking to adjudicate a labour issue before this Court. It is further contended that the fourth respondent union has preferred SLP 16468 of 2006 before the Hon'ble Supreme Court against the order in W.A.No.3110/2003 and the same is still pending. Finally, the fourth respondent would contend that the earlier settlement having been cancelled, it cannot be relied upon and since the present dispute is a private dispute between the Unions, the writ petition is not maintainable. 10. The fifth respondent union would claim that it has substantial following among the workmen of the sixth respondent factory and multiple unions are reality in Industrial sector and multi-polar is the ethos of democracy and every union has got a right to represent its members and directly talk to the management about grievances of its members and enter into settlement under Section 18 (1) of the Industrial Dispute Act, which would bind only the members of such union. It is further submitted that the fifth respondent union is not against the conduct of election every two years and in fact the fifth respondent supported the petitioner union in the election held on 10.10.2006. However, the petitioner union has no legal right to prevent the other unions from negotiating with the management or raising disputes before the conciliation officer. In the earlier proceedings before this Court, the settlement entered into under Section 12(3) dated 09.08.1990 was relied on and held to be binding and based on the Judgment, the elections were conducted by https://hcservices.ecourts.gov.in/hcservices/ the respondents 1 and 2 on 10.10.2006 and the period of 2 years for which the negotiating council was elected came to an end of 09.12.2008 and there is no provision in the 12(3) settlement dated 09.08.1990 stating that the elected body continues to enjoy the status till the next union election. By referring to clause 3 of the settlement dated 09.08.1990, it is contended that the elected union automatically looses its recognition, after expiry of the two years and therefore, the petitioner is no longer the recognized union. As per clause 1 of the settlement the elected body should negotiate with the management and such prohibition is only for two years and if the interpretation given by the petitioner is accepted then the petitioner would continue to be the representative body in perpetuity and this would be contrary to the settlement dated 09.08.1990 and against the spirit of the Industrial Dispute Act. It is further contended that the prayer sought for in the interim application has no connection to the relief sought for in the main writ petition and therefore both the writ petition and the application for interim relief are liable to be dismissed. 11. Based on the above pleadings the parties are before this Court. Heard Mr.V.Prakesh, learned senior counsel appearing for the petitioner, Mr.Sanjay Mohan, learned counsel appearing for the sixth respondent, Mr.G.B.Saravanabhavan, learned counsel appearing for the third respondent union, Mr.A.L.Soyamajee learned senior counsel appearing for the fourth respondent and Mr.Balan Haridoss, learned counsel appearing for the fifth respondent. 12. The learned senior counsel appearing for the petitioner would contend that the writ petition is maintainable and the order passed by this Court in the earlier writ petition in W.P.No.33200/2002 confirmed by the Hon'ble Division Bench is binding on the management. The Special leave petition filed by the fourth respondent union is pending before the Hon'ble Supreme Court and it is being repeatedly adjourned at the instance of the fourth respondent by circulating letters of adjournment. It is further contended by the learned senior counsel where there are multiple trade unions in a management the question of recognition comes in and the concept of sole bargaining agent is a recognised and accepted concept and the trade union which enjoys the majority support would represent the workmen and the contention that the sixth respondent management will speak to all unions is untenable and against the principle of sole bargaining agent. The learned counsel would further submit that though the management was not a party to the earlier writ petition and writ appeal, the management accepted the Judgment of this Court, elections were held, the petitioner union was recognized as the representative body by the management, negotiations were held with the petitioner by the Management and since there was no settlement, an industrial dispute was raised and therefore the management cannot at this stage contend that the order is not binding https://hcservices.ecourts.gov.in/hcservices/ on them. The management having not filed any appeal against in orders in W.P.No.33200/2002 and W.A.No.3110/2003, is attempting to fight a proxy litigation and there cannot be a different position after the order passed in W.P.No.33200/2002 was confirmed by the Hon'ble Division Bench. In effect the management is seeking to over rule the earlier order passed by this Court, which was confirmed by the Hon'ble Division Bench. As regards the settlements entered into between 05.09.2003 and 24.08.2006, it is contended that during the said period of there was a stay of the Judgment in W.P.No.33200/2002 and the settlements were entered into with the other unions during the period of stay and that the management is attempting to adopt a policy of divide the rule. Further it is contended that only when there is a consent for a secret ballot, the same could be adopted and in the instant case, there is already a consent and the management having accepted the earlier order of this Court, cannot adopt the present stand. It is further contended even against trade unions interim orders could be granted and this cannot take away the power of this Court and there is no strict law that no contract could be interfered by this Court under Article 226 of the Constitution of India. 13. Further that in the instant case, the parties themselves agreed to resolve the dispute and the agreed that a public official shall conduct the election and in such circumstances, the writ petition is maintainable against such public official more so because the obligation to conduct election is pursuant to a settlement under Section 12(3) of the Industrial Disputes Act. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Balmer Lawrie Workers' Union, Bombay and another Vs. Balmer Lawrie & Co. Ltd and others - 1984 (Supp) SCC 663, Food Corporation of India Staff Union Vs. Food Corporation of India and Others - 1995 2 LLJ 272 and the decisions of the Hon'ble First Bench of this Court in MRF United workers Union Vs. Government of Tamil Nadu and others in W.P.No.17991/2008 and W.A.674/2009 dated 08.09.2008. The learned senior counsel would submit that the Judgment in the case of MRF United workers Union, referred supra, has been stayed by the Hon'ble Supreme Court, but the same looked into as the Judgment has not been reversed. 14. Mr.Sanjay Mohan, learned counsel appearing for the sixth respondent Management would contend that the conduct of the management cannot clothe the petitioner with an enforceable right under Article 226 of the Constitution of India and since the private respondents are not statutory bodies, mere acceptance of the order passed by this Court in the earlier writ petition confirmed by the Hon'ble Division Bench cannot confer a right on the petitioner. It is further submitted that the management was not a party to the earlier writ petition and all matters subsequent to 12(3) settlement dated 09.08.1990 could not be placed before this Court in the earlier https://hcservices.ecourts.gov.in/hcservices/ writ. It is further contended that in the case of MRF, referred by the learned senior counsel for the petitioner, the Hon'ble First Bench, discountenance the method of secret ballot. It is further contended that even in the 1990 settlement contemplated only a representative body there is no prejudice caused if the management speaks to all the unions. The learned counsel referred to Section 19 (5) of the Industrial Disputes Act and stated that the Hon'ble Supreme Court has interpreted and held that the word "award" according in Section 19(5) could be read as settlement also. The learned counsel placed reliance on the decision in the MRF case as well as the decision of the Hon'ble Supreme Court in Life Insurance Corporation India Vs. D.H.Bahadur and others- 1981 1 SCC 315, and the code of discipline, which was ratified by the Central Employees and Workers Organisation, which code was held to be binding the Hon'ble First Bench of this Court in the case of MRF, referred supra. Finally, the learned counsel submitted that the writ petition is liable to be dismissed as not maintainable. 15. Mr.A.L.Soyamajee, learned senior counsel appearing for the fourth respondent union would contend that the prayer against the respondents 3 to 5 are not maintainable, since they are registered trade unions. The prayer sought for cannot be granted, since there is no statutory duty or obligation to hold elections and in the absence of any law regarding recognition of trade unions in State of Tamil Nadu, there is no statutory duty on the respondents 1 and 2 to conduct elections and therefore the writ of mandamus is liable to be dismissed. It is further contended by the learned senior counsel that inter union rivalries can only be adjudicated before the appropriate forum under the Industrial Disputes Act and no such Mandamus could be issued more so when special leave petition is pending before the Hon'ble Supreme Court against an order in W.A.No.3110/2003. Several settlements have entered into with the management and they have been implemented from time to time and the respondents 3 to 5 have terminated the settlement dated 09.08.1990 and 06.02.2006 and the MOUs dated 18.05.1995 and 09.09.1997 and the management also terminated the same on 26.09.2008 and therefore question of conducting elections as per such settlement does not arise. Further the learned senior counsel would contend that interim order which has been granted restraining the management from negotiating with the respondent Unions is beyond the scope of the main writ petition and such interim order cannot be granted especially when writ petition itself is not maintainable and the respondents 3 to 5 are not amenable to the writ jurisdiction of this Court. The learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in The Praga Tools Corporation Vs. Shri.C.Imanual and others - 1969 (1) SCC 585 and Chairman, State Bank of India and another - 2003 AIR SCW 3760 and the decision of the Kerala High Court in Chemosyn Private Ltd. and others Vs. Kerala Medical and Sales Representatives https://hcservices.ecourts.gov.in/hcservices/ Association and others - Vol. 71 FJR 355. 16. Mr. Balan Haridoss, learned counsel appearing for the fifth respondent by relying upon the definition of an Industrial Dispute under Section 2 (k) of the Industrial Disputes Act would contend that disputes between the workmen and workmen also would encompass an industrial dispute and also relied on rule 25 B of the Tamil Nadu Industrial Dispute Rules 1958. It is further contended that after 2008 the recognition of the representative body automatically lapses and the petitioner union cannot cling on to the settlement and now the management is willing to discuss with all the unions and the same will be a larger democracy and the interim order granted by this Court is working great prejudice against the members of the fifth respondent union and the petitioner union seeks to monopolies the situation and this is against industrial democracy. It is further contended that there is no single union, which is recognized and what was contemplated was only a negotiation council since the 1990 settlement was replaced in 1999. It is submitted that as on date the writ petitioner has no legal right. Finally, the learned counsel would submit that the fifth respondent union is agreeable for election for electing a negotiation council. 17. I heard the submissions all the learned Senior counsels and learned counsels for the parties and perused the materials available on record. 18. The writ petitioner trade union has approached this Court for a direction to direct the respondents 1 and 2 to conduct an election by secret ballot to enable the workers of the sixth respondent Management to elect their representative body for recognition. The first and foremost ground on which the respondents resisted the claim made by the petitioner is that a Writ Petition is not maintainable for such a relief and the petitioner cannot compel this Court to direct the respondents 1 and 2 to hold elections, since there is no law in the State of Tamil Nadu regarding recognition of trade Union and there is no statutory duty cast upon the respondents 1 and 2 to conduct elections. At the first blush, it would appear that the controversy in the present case is a inter union dispute which normally this Court would venture into in a petitioner under Article 226 of the Constitution of India, but in the instant case, there appears to be a distinction from the normal line of cases, which project a inter union dispute simplicitor. Therefore, it becomes necessary to consider as to what is the peculiar feature of the present case, which call for interference in the present writ petition or as to whether