1 wp.no.386/10 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 386/2010 . MORMUGAO PORT AND RAILWAY WORKERS' UNION, a Trade Union registered under the Trade Union Act and affiliated to All India Port & Dock Workers' Federation & Hind Mazdoor Sabha, having office at Ground Floor, Main Administrative Office Building, Mormugao Port Trust, Headland, Sada, Mormugao through its working President Shri Leonard Rodrigues, son of Pedro Rodrigues, 68 years, Indian National, r/o Baina, Indian National, r/o Baina, Vasco- da-Gama, Goa. ....... Petitioner. Versus 1. THE BOARD OF TRUSTEES OF THE PORT OF MORMUGAO, a body corporate constituted under the Major Port Trusts Act, 1963 having office at Headland, Sada, Mormugao, through its Chairman Shri Praveen Agarwal, major, married, r/o Headland, Sada, Mormugao. 2. SHRI PRAVEEN AGARWAL, IRS, major, married, r/o Headland, Sada, Mormugao. 3. THE RETURNING OFFICER & DY. CHIEF LABOUR COMMISSIONER (CENTRAL), Mumbai, Office of the Chief Labour Commissioner (Labour), Shrama Raksha Bhawan, 1st Floor, Shiv 2 wp.no.386/10 . Shrusti Road, Eastern Express Highway, Sion, Mumbai 400 022. 4. GOVERNMENT OF INDIA, through the Secretary, Ministry of Labour & Employment, Shrama Shakti Bhawan, Rafi Marg, New Delhi. 5. GOA PORT & DOCK EMPLOYEES UNION, a Trade Union registered under the Trade Union Act, affiliated to Hind Mazdoor Sabha and All India Port & Dock Workers' Federation (Workers), having office at Ground Floor, Main Administrative Office Building, Mormugao Port Trust, Headland, Sada, Mormugao through its President Shri Lourenco Cardozo, Indian National, major, married, r/o Jetty, Mormugao, Goa. 6. MORMUGAO WATER FRONT WORKERS' UNION, a Trade Union, registered under the Trade Unions Act, affiliated to Center of Indian Trade Unions (CITU), having office at 1st Floor, Dr. Mukund Building, Vasco-da-Gama through its President Shri F.X. Rodrigues, Indian National, major, married, r/o Chicalim, Goa. 7. TRANSPORT & DOCK WORKERS UNION, a Trade Union, registered under the Trade Union Act, affiliated to Hind Mazdoor Sabha and All India Port & Dock Workers' Federation, having office at 6/8, Pandit Kossambe Building, 2nd 3 wp.no.386/10 . Floor, Swatantrapath, Vasco-da-Gama through its General Secretary Shri Baburao Bhosle, Indian National, major, married, r/o Baina, Mormugao, Goa. 8. GOA PORT & DOCK EMPLOYEES UNION (WORKERS), a Trade Union, registered under the Trade Unions Act, affiliated to Indian National Trade Union Congress (INTUC), having office at V- 74/11/1, MPT Quarters, Baina, Vasco-da- Gama through its General Secretary Shri Prabhakar Salgaonkar, Indian National, major, married, r/o Taleigaon, Panaji, Goa. 9. MORMUGAO PORT TRUST EMPLOYEES UNION, a Trade Union, registered under the Trade Unions Act, affiliated to Indian National Trade Union Congress (INTUC) having office at 14, Apna Bazar, 2nd Floor, Vasco-da-Gama through its General Secretary Shri Santosh Fadte, Indian National, major, married, r/o Diwan Vastu Bldg., Near Vadem Lake, Vasco-da-Gama, Goa. 10. MECHANICAL ORE HANDLING PROJECT TECHNICIANS ASSOCIATION, a Technical Labour Association, registered under the Trade Union Act, through its General Secretary Shri Joseph Gonsalves, Indian National, major, married, r/o Near MES College, Alto Dabolim, Goa. 4 wp.no.386/10 . 11. MOHP (MPT) WORKERS' UNION, a Trade Union, registered under the Trade Union Act, affiliated to All India Trade Union Congress (AITUC), having office at Velho Building, Second Floor, Opp. Municipal Garden, Panaji, Goa, through its President Shri Christopher Fonseca. 12. GOA PORT & DOCK WORKERS ORGANIZATION, affiliated to Bharatia Mazdoor Sangh (BMS) having office c/o Sakharam Amerkar, Headland, Sada, Mormugao through its Working President Shri Rui Godinho, Indian National, major, married, r/o Mangor, Vasco-da-Gama, Goa. 13. GOA DOCK LABOUR UNION, a Trade Union, formerly registered under the Trade Unions Act, 1926, its Certificate of Registration now cancelled by the Registrar of Trade Unions appointed by the appropriate Government u/s 3 of the Trade Unions Act, 1926 through its General Secretary Shri Rudraji Dessai, Indian National, major, married, r/o Margao, Goa. ....... Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. V. Parsekar, Advocate for the Petitioner. Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for respondent No.1. Mr. C. A. Fereira, Asst. Solicitor General for Respondent No.4. 5 wp.no.386/10 Mr. V. A. Lawande, Advocate for Respondent No.5. Mr. M. S. Sonak and Mr. J. Supekar, Advocates for Respondent No.7. Mr. M. Prabhudessai, Advocate for Respondents No.8, 9, 11 and 13. Mr. Shivraj Gaonkar, Advocate for respondent No.12. CORAM : S.C. DHARMADHIKARI & F.M. REIS, JJ. Date of reserving Judgment : 31st March, 2011. Date of pronouncing Judgment : 3rd May, 2011. J U D G M E N T : (Per S.C. DHARMADHIKARI, J. ) By this Petition under Article 226 of the Constitution of India, the Petitioner Union has sought a declaration that the Secret Ballot method for ascertaining the majority is not permissible and the decision of Respondent No.3 to resort to Secret Ballot process for ascertaining the same, be quashed and set aside. 2. The Petitioner is a Trade Union, registered under the Trade Unions Act, 1926 and affiliated to All India Port and Dock Workers’ Federation & Hind Mazdoor Sabha. It claims majority 6 wp.no.386/10 amongst the employees/workers employed at the Port Trust of Mormugao, which is a Body Corporate, constituted under the Major Port Trusts Act, 1963. 3. It is stated in the Petition that after liberation of Goa, the administration of Respondent No.1 Port was taken over by the Government of India on 8th January, 1962. Thereafter, in terms of Major Port Trusts Act, 1963 (hereinafter, for short, referred to as “the MPT Act”), the Mormugao Port Trust was declared as a “Major Port”. Its administration is with the Trustees of the Port. It is stated that the First Respondent is a Major Port. It is submitted that the Petitioner was registered at Panaji on 22nd February, 1964. The First Respondent recognized the Petitioner by its letter dated 16th April, 1964 (Annexure P-2) as a Representative Union of the Employees of the Port, subject to the Petitioner agreeing to observe the Code of Discipline (for short “the Code”). A copy of the Code is annexed as Annexure P-3. 4. It is stated that subsequently, there was a split in the Petitioner Union and some of the Members constituted a new Trade Union in November, 1977, known as “Goa Port & Dock Employees 7 wp.no.386/10 (Non-Ministerial) Workers’ Union”, which is Respondent No.5 to this Petition. During the course of time, many new Trade Unions were constituted and registered under the Trade Unions Act. They are respondents No.6 to 12. After referring to representation of these Unions, what is alleged is that the First Respondent was dealing with the Petitioner and Respondent No.5 in a satisfactory manner and important issues were discussed. It is stated that as far as Major Port Trusts in Indian are concerned, the Government of India found that recognition of major trade unions by “Check Off” system for selecting the Union representative on the Board and various Committees was convenient, fair and acceptable. It also assisted in administration of the Port, and it was decided to have this system at Major Ports. This system was evolved after consulting all five recognized Labour Federations and obtaining their consent. A reference is made to a meeting held under the Chairmanship of Secretary, Ministry of Surface Transport, on 20th April, 1998. It is stated that at this meeting, the Check Off System proposed by the Federations was approved with slight modification for implementation. Reliance is placed on Annexures P-4 and P-5 annexed to this Petition in this behalf. 8 wp.no.386/10 5. After referring to the Code and its legal status, what is stated is that the Check Off System has advantage of ascertaining the relative strengths of trade unions, based on continuing loyalty reflected by the regular payment of Union subscription. Further this system avoids the incidents of dual membership. The results of this system were utilized for the purpose of appointment of Labour Trustees on Respondent No.1, appointment of members on various Committees. Under the Check Off System, an employee is allowed to subscribe to only one registered Trade Union of his choice. Collection of the employees' subscription to the Union is done on the basis of authorization letters given by them to that effect in the prescribed form. The authorization letter once given remains valid until revoked by the employee. Recovery of subscription is done from salary and wages payable to the employee. If the employee having given authorization letter in favour of one Union, gives without revoking that authorization, another authorization in favour of a second Union, Respondent No.1 has a right to refuse both the authorizations. The facility of Check Off system is available to an Union, as long as its registration under the Trade Unions Act, 1926 is in force. 9 wp.no.386/10 6. It is stated that at the time of reconstitution of the Board of Trustees, Respondent No.1 consults all the registered Trade Unions and obtains two names in order of preference from each of the Unions along with required Certificates to the effect that the persons nominated do not incur any disqualification and, thereafter, Respondent No.1 intimates the names received along with the Certificates to the Central Government. After receiving the results of Check Off, the Ministry of Shipping assesses the entitlement of the Unions wherever necessary. It is the case of the Petitioners that out of the total employees employed at the First Respondent Board as on 31st January, 2009, namely, 2245, the Petitioner commands a strength of 1284 employees; Respondent No. 5 - 923 employees, Respondent No.6 – 12 employees, Respondent No.10 – 7 employees, Respondent No.9- 2 employees and Respondent No.12 – 17 employees. The strength for the year 2010 was yet to be assessed or declared. The letter dated 30th March, 2009, enclosing therewith this statement is annexed as Annexure P-5 collectively. It is contended that in June, 1998, the employees’ strength at the First Respondent was 4228 and 95.11 % of these employees totalling to 3831 opted for implementation of the Check Off System in recognizing the Union strength and for 10 wp.no.386/10 appointing their representatives on Respondent No.1 and its various committees and the Check Off system continued and was operated very efficiently, particularly in the absence of any legislation on the subject. 7. It is further contended that the MPT Act empowers the Central Government to constitute Board of Respondent No.1 with Labour Representatives thereon. Such a Board has been constituted and its term expired on 31st March, 2010. After setting out the procedure adopted by the Central Government for appointing two Labour Representatives on the Board and emphasizing that it is by ascertaining the support of employees to a particular Union and to the extent of 60%, it is urged that from 1964 till 2009, the said procedure has been applied and it has worked well from 1964 to 1978. Two nominees of the Petitioner were on the Board and from 1979 one representative each of the Petitioner and Respondent No.5 is nominated on Respondent No.1. 8. It is then contended that the First Respondent, in the year 1999 issued a Policy on Industrial Relations and Criteria to be adopted for recognition of Trade Unions functioning in the Port. A copy of 11 wp.no.386/10 this detailed Policy is annexed at Annexure P-6 and the Petitioner was permitted to nominate its Members on the Committees referred to in Paragraph 14 of the Petition. It is stated that this Policy was approved by Respondent No.1 in its meeting held on 29th December, 1999. However, it is contended that the Second National Commission on Labour, in its recommendation to the Government of India, strongly recommended that in undertakings wherein there are more than 300 workers employed, Check Off System should continue, as it will be difficult to hold Secret Ballot in large undertakings. The decision to continue with the Check Off System was taken at the joint meeting between the representatives of five recognized Federations of Port and Dock Workers and the Ministry of Shipping. It is stated that even otherwise, in the absence of any Legislation to hold Secret Ballot, it will be unjust and unfair to insist on the same. It is stated that it is the Ministry of Shipping which directed by letter dated 23rd April, 1998 introduction of Check Off System in all Major Ports, including the Mormugao Port Trust and it is pursuant thereto that the said system had been followed. It is then stated that the Petitioner has opposed certain Policies of privatization, initiated by the Port and, therefore, Respondent No.2, who was functioning as a Chairman, had some 12 wp.no.386/10 grudge against it and in such circumstances, he decided to introduce Secret Ballot System. Therefore, in January, 2010, Respondent no.2 did not credit the subscription amount in favour of the Petitioner to the extent of Rs.64,200/- which was collected from each Member Employee of the Petitioner. The Acting Secretary of the First Respondent then convened a meeting of the representatives of all the Registered Trade Unions regarding the implementation of Secret Ballot System, instead of Check Off System to ascertain the strength of membership of the Registered Trade Unions on 21st January, 2010 at 10.00 hours in the Board Room. At this meeting, the Secretary informed that the directions were issued by the Ministry of Shipping vide letter dated 10th November, 2009 for implementation of Secret Ballot System, instead of Check Off System, and the meeting was convened to ascertain the views of each Union. It was assured that based on the views expressed at this meeting, a decision would be taken by the Chairman of the First Respondent and communicated to the Ministry of Shipping. At this meeting, the Petitioner and Respondent No.5 strongly objected to the implementation of Secret Ballot System and pointed out that this will result in exploitation of the employees by using money and muscle power and expressed that 13 wp.no.386/10 the issue was required to be discussed with five recognized Labour Federations. It was stated that the Secret Ballot System should not be imposed unless the Unions agree for its implementation. It was stated that the Petitioner and Respondent No.5 commanded support of 90 % of the employees. Reliance is placed on the Minutes of the Meeting held on 21st January, 2010, copy of which is at Annexure P-7 and a copy letter dated 2nd February, 2010. It is stated that by a letter dated 12th March, 2010 (Annexure P-9), the Ministry of Shipping directed Respondent No.2 to forward the result of Secret Ballot held in the Port along with two names in order of preference nominated by each of the Unions. However, it is urged that there is no direction to hold Secret Ballot, but, the communication only seeks information in terms of the prevailing system at the Port. It is stated that respondent No.2 did not act on this letter, nor did he forward the required information for following the Check Off System. It is stated that by letter dated 7th April, 2010, the Secretary of Respondent No.1 informed the Petitioner that in the meeting held on 21st January, 2010, out of eight Unions, six Unions had given their consent for implementing the Secret Ballot System. It was further informed that the Ministry of Shipping had issued the directives to adopt the Secret Ballot System at the Port vide 14 wp.no.386/10 communication dated 15th February, 2010 which was the communication that was not enclosed with Annexure P-9. It was further informed that the Ministry of Labour had given its concurrence for implementing the Secret Ballot System by communication dated 23rd March, 2010 which was also not enclosed. Therefore, the directions to Respondent no.3 to conduct Secret Ballot at the Port and all the communications in that behalf are per se illegal, ab initio void and derogatory to the Code and the Check Off System. 9. It is stated that the Petitioner was further informed to apply for a symbol of the Union by 12th April 2010 and to participate in the Secret Ballot Election. It was informed that Respondent No.3 desired that all the Trade Unions should furnish details pertaining to their respective Unions in the prescribed proforma along with copy of the constitution and latest annual returns. However, by a letter dated 8th April, 2010, the Petitioner objected to the Secret Ballot Election on the ground that the six Unions which had allegedly consented to this System do not have more than 10 % of the total strength of the employees at the Port; whereas the Petitioner and Respondent No.5 have a strength of 90 % employees and they are all opposed to the 15 wp.no.386/10 Secret Ballot System. It is in such circumstances that the Petitioner objected to this System. But respondents No.1 and 2 persisted and, therefore, the Petitioner was communicated by a letter dated 12th April, 2010 (Annexure P-12) that Respondent No.3 has been appointed as the Returning Officer to conduct the Secret Ballot Elections and he would convene a meeting on 16th April, 2010 in Mumbai to decide the date of elections and other modalities. The Petitioner was requested to send its President and General Secretary on 16th April, 2010 at Mumbai to attend the meeting. The Petitioner attended the scheduled meeting and by a letter dated 15th April, 2010 has even forwarded their written objections. The written objections were raised by the Petitioner and Respondent No.5. They reiterated them at the meeting, but it is alleged that the decisions taken at the meeting were not communicated. It is alleged that Respondent No.5 allegedly consented to the Secret Ballot System on 27th April, 2010. The Petitioner was then communicated by Annexure P-14 dated 20th April, 2010 that a meeting was convened on 27th April, 2010 by respondent No.3 in order to discuss and finalise the date of elections and to chalk out calendar of events accordingly. Once again the Petitioners were requested to nominate two officers to attend the meeting which the Petitioner did. They once again forwarded their 16 wp.no.386/10 written objections to the Secret Ballot Elections. However, on 27th April, 2010, Secret Ballot Elections were ordered by Respondent No.3 which was once again objected to by Annexures P-16 and P-17. 10. In these circumstances that this Petition is filed, impugning the recommendation to introduce the Secret Ballot System and the decision in that behalf, so also the elections. This Petition was filed in this Court on 4th May, 2010. 11. The Petition was circulated for admission and on 6th May, 2010, the Court directed that notices be issued and the matter was placed on Board on 4th May, 2010. On 12th May, 2010, after hearing both sides and considering the decisions brought to his notice, the learned Vacation Judge passed an Order. Para (4) of the said Order reads as under : “4. Considering these facts and circumstances, it would be appropriate to pass the following order: (a) The election process as commenced shall continue subject to the following directions: 17 wp.no.386/10 (i) Votes polled shall be kept sealed in the ballot boxes till further orders of this Court. (ii) The ballot boxes shall be sealed in the presence of one representative of the each Union including the petitioner where the voting boxes are placed. (iii) Sealing of the ballot boxes shall be carried out peacefully and no Union including the petitioner and the respondents shall create any law and order problem at the time of such sealing. (iv)Sealed ballot boxes shall be kept in the custody of the respondent No. 3 – Returning Officer. (b) The petitioner and the respondents shall maintain peace in course of entire election process.” 12. Thereafter, an application for amendment was made in the light of the directions in the said order. The Petition has been amended to impugn the entire process and incorporating the subsequent events and additional grounds. After the Petition was amended, it was placed for admission before a Division Bench of this Court on 21st July, 2010 and this Court admitted the Writ Petition and directed that it should be 18 wp.no.386/10 heard peremptorily. Ad interim order was directed to continue. Subsequently, the Petition has been placed before us for hearing and final disposal. 13. In answer to the Petition, the Secretary of the First Respondent filed affidavits, first at the stage of grant of an ad interim relief on 11th May, 2010, in which an objection was raised that there were express directions from the Government of India to implement the recommendations of the All India Port Association. That recommendation was to ascertain the strength of the Unions by Secret Ballot System. In the light of these directions issued in letter dated 10th November, 2009 of the Ministry of Shipping, that the First Respondent convened a meeting and ultimately decided to hold Secret Ballot Elections. It was urged that the Petitioner allowed the process to be initiated and proceeded and they cannot, therefore, object and now seek a stay of the electoral process scheduled on 14th May, 2010. Needles, therefore, to refer to this Affidavit in further details, because, on the basis of this affidavit and the stand taken therein that this Court granted the above limited ad interim relief. Some Affidavits were also filed on behalf of Respondent No.5 and Respondent No.8, opposing 19 wp.no.386/10 the grant of ad interim relief. 14. Respondent No.9 also supported the Secret Ballot System. As far as Respondent no.12 is concerned, its stand is that the Secret Ballot is a democratic process adopted in various Central Public Sector Undertakings and even in other establishment like Nhava Sheva Port, Konkan Railways, ONGC, BSNL, etc. To these Affidavits, Rejoinder Affidavits came to be filed by the Petitioner on 12th May, 2010. 15. Thus, These are the Affidavits filed prior to the Amendment of the Petition. Upon amendment being carried out, the First Respondent filed a detailed Affidavit-in-Reply, affirmed on 3rd July, 2010, in which in paragraph 3, that is what is stated : “3. With reference to paragraphs 1 and 1A of the amended Petition, I say that it is not correct to say that the secret ballot system is implemented purely on the recommendations of the IPA. It is submitted that based on the recommendations of the IPA, a policy decision was taken by the Ministry of Shipping, Government of India to adopt an uniform procedure for ascertaining the 20 wp.no.386/10 strength of Unions through Secret Ballot System and this was communicated to all the Major Port Trusts. In this regard, attention is invited to paragraph 4 of the EXHIBIT P1 which clearly mentions that: “the recommendations made by the governing body of IPA have been accepted by the competent authority”. The IPA is the governing body for all major ports which assist the Ministry of Shipping to formulate Government policies which are then adopted by the Ministry for implementation. Further, it may be noted that Board of Trustees of MPT have passed a Policy on Industrial Relations and criteria to be adopted for recognition of Unions functioning in the Mormugao Port vide its Resolution No. 257 dated 29th December, 1999 wherein, it has been clearly brought out depending upon the activities of the unions and persuasion of the members, it will be considered necessary that the workers should have the right to change union membership according to their choice. In such circumstances, it would be necessary to ascertain the membership strength of the union by either “check off system” or “secret ballot method”. In 21 wp.no.386/10 fact, Appendix II to the said Industrial Policy at Clause 18 (d) thereof clearly provides scheme and time-table for holding secret ballot in the Major Port Trusts and DLBs. However, the secret ballot system has been adopted based on the directives issued by the Ministry of Shipping (EXHIBIT P1) through an independent agency i.e. the Labour Ministry represented by Chief Labour Commissioner (Returning Officer). The said RO had held series of discussions with all the Unions concerned functioning at his Port and management representatives and only after considering views expressed by them, the Dy. CLC(C), Mumbai had come to the