IN THE HIGH COURT OF JUDICATUE FOR RAJASTHAN AT JODHPUR O R D E R P.V.K.U., Rawatbhata through Sanjay Sangar Vs. The Nuclear Power Corporation of India & Ors. S.B.CIVIL WRIT PETITION NO.1270/2006 Under Article 226 of the Constitution of India. Date of Order : 21st April, 2006 PRESENT HON’BLE SHRI N.P.GUPTA,J. Mr.R.S.Charan, for the petitioner. Mr.Arun Bhansali, for the respondents. REPORTABLE BY THE COURT: The petitioner by this writ petition seeks to obtain a direction, that letter dated 24.2.2006 (Annex.5), and circular dated 24.2.2006 (Annex.6), may be declared illegal and be set aside. The other prayer made is, that the respondents may be restrained from introducing “Check Off System” i.e. deduction of union membership subscription fees from employees’ salary, and that, they may be directed to continue with the earlier system of secret ballot, for deciding the majority of membership, for the purpose of recognition, to the Union. The averments of the petitioner are, that the petitioner is a registered recognised trade union, having registration No.TU/BHL/3/88. It is alleged, that vide letter dated 13.5.2003, the Manager (P & IR) approved recognition to the petitioner in the Rajasthan Atomic Power Station 1 and 2, for a period of two years, as a result of recognition by secret ballot. The letter is produced as Annex.1 and Annex.1-A. It is alleged, that at Rajasthan Site of the Nuclear Power Corporation of India Ltd., there are three registered unions, being the petitioner, Rajasthan Atomic Power Sharmik Sangh (RAPSS) and third being, Rajasthan 2 Anushakti Pariyojna Karamchari Sangh (RAPKS). According to the petitioner, the procedure of secret ballot is being followed for deciding majority of the membership, for the purpose of recognition, to function separately for Rajasthan Atomic Power Station Unit 1 and 2, 3 and 4, 5 and 6. It is then alleged, that the Regional Labour Commissioner, vide letter dated 27.5.2005 (Annex.2), informed the petitioner-union, that the Ministry of Labour has decided to collect preliminary particulars of the Management, and Unions operating in Rajasthan Atomic Power Project 1 to 6, for the purpose of verification of membership of the unions, operating in the project 1 to 6, through secret ballot, and the petitioner was directed to furnish certain information/ particulars. The petitioner accordingly submitted the documents, and to the petitioner’s knowledge, other unions also submitted the informations. The Regional Labour Commissioner then held a meeting, on 29.6.2005, regarding verification of membership, as informed vide letters Annex.3 and 4. Thus, the Regional Labour Commissioner has already started the process of verification of membership of the unions, and the 3 unions furnished necessary documents. It is alleged, that the petitioner-union and other unions are in favour of recognition by secret ballot. It is then alleged, that the Additional General Manager (H R) of the respondent-company, vide letter dated 24.2.2006 informed, that the petitioner’s recognition has expired, therefore, the management intends to recognise the union, having majority of the members posted in the Rajasthan Site, and that, in line of the policy for recognition of only single union at Rajasthan Site, it has been decided to introduce the “Check Off System”, i.e. deduction of union membership subscription fees from the employees’ salary, as it would help in determining the identity of the union, having largest/ maximum membership strength, and on that basis, recognition is granted to one union out of the three, for the Site, for description/negotiations with the management, on employees welfare matters. It was also informed therein, that the petitioner and RAPKS have also agreed for single recognised union at the Rajasthan Site, for the purpose of negotiation and 4 discussion. This letter has been produced as Annex.5 and is enclosed. It is then alleged, that Additional General Manager (H R) also issued a circular dated 24.2.2006, about introduction of “Check Off System”, giving details and methods of the said system, i.e. deduction of union subscription fees on monthly basis, on the basis of written authority, given by the employee, and that amount shall be deposited every month, in the bank account of respective union. According to it, every employee, desiring to become member of any union, will have to fill up an authority letter for deduction, as per the choice of the individual employee for a particular union, and on the basis of such authority letter, it will be ascertained, as to which of the unions has the maximum membership, and the union having majority membership, shall be recognised. The forms are to be submitted positively by 20th March 2006. This letter is produced as Annex.6. According to the petitioner, immediately thereupon, the petitioner and RAPKS submitted their protest against introduction of 5 “Check Off System”, and about the allegation of the union having agreed for single recognised union, and it was alleged, that the unions had only agreed for the process of recognition through secret ballot. However, the “Check Off System” was claimed to be wholly uncalled for, highly objectionable and un- constitutional. At the end of para-9 of the writ petition, containing this pleading, an addition has been made by hand as under: “Now all the working three consern unions agreed for secret ballot verification.” It is then pleaded, that despite strong objection, the management has decided to continue with the “Check Off System”, the representations did not receive any hearing. It is alleged, that though the recognition has expired but the management still invite the petitioner- union for deliberations, and for this purpose, the letters received have been produced as Anex.9 to 11. With these pleadings the “Check Off System” has been challenged as illegal, arbitrary, and having no 6 sanction of rules, concerning the system of verification for recognition, and that the system of secret ballot is being followed from the very beginning, and there is absolutely no reason for change over, as every workman has a right to get associated with any of the unions of his choice. The other ground taken is, that system of secret ballot, for deciding majority of members, for the purpose of recognition, is being followed by the Labour Ministry, Govt. of India, and presently also, the Regional Labour Commissioner has already started process, as such, during pendency of the proceedings before Regional Labour Commissioner, the unilateral decision of management in introducing “Check Off System” is illegal and arbitrary. Then the next ground given is, that in the “Check Off System”, the process of submission of authorization, clearly amounts interference by the management in the function of trade unions, as it amounts to direct involvement of the management in the process of collection of Membership Fees, in which the workman is required to disclose secrecy of the membership to the union, and management will be in position to influence the workers 7 in exercising their right to cast the vote freely to the union of their choice, and would result in conflicts between the employees, vis-à-vis other employees, and the unions, so also between union and union. Thus, it would harm industrial harmony and peace. Thus, in substance, the challenge is only to the “Check Off System”; and the change over to recognising of one union for all the units at the site at Rawatbhata, as against the prevailing system of recognising three separate unions, for the three power stations, is not under challenge. It is a different story, that this policy decision of change over, to the recognition of one union, had been a subject matter of challenge by another union, being RAPSS, vide S.B. Civil Writ Petition No.1253/06, and vide judgment dated 9.3.2006, that writ was dismissed, and the policy decision was upheld. It is again a different story, that in the aforesaid writ No.1253/06, the petitioner therein had challenged introduction of “Check Off System”, and it was held, that in absence of anything to show, that the 8 verification of “Check Off System” is not permissible by law, much less prohibited by law, the petitioner cannot be said to be entitled to invoke Article 226 jurisdiction. Be that as it may, the above fact is only noticed as a fact, however, since the learned counsel for the parties have argued the matter, on validity of introduction of “Check Off System”, and have cited various cases, I have examined the controversy on the validity of introduction of “Check Off System”, even without in any manner being obsessed by my decision in said writ petition No.1253/06. A reply has been filed on behalf of the respondents, raising certain preliminary objections, firstly contending, that the recognition of majority of union, as bargaining agent, on behalf of the workmen is not regulated by any statutory provision, and as such, there is no legally enforceable right in favour of the petitioner, and consequently the writ is liable to be dismissed. Another objection is, that the whole basis of challenging the “Check Off System” is, that the Regional Labour Commissioner has already started the 9 process of verification of membership, and the respondents have introduced the “Check Off System”, but then, the Regional Labour Commissioner has not been impleaded as party, in whose absence, the challenge cannot be adjudicated, and therefore also, writ is liable to be dismissed. Then para wise reply has also been submitted, and it was not disputed, that the determination of majority of union is being done by the Ministry of Labour, Govt. of India, through secret ballot, and that the said Ministry had started process, at the instance of respondents only, and that rather the respondents themselves had requested the Labour Ministry to initiate verification through secret ballot system at Rawatbhata Rajasthan Sites 1 to 6. Number of reminders were also sent, and the matter was personally persuaded, however during course of discussion, the Ministry had expressed, that out of the three registered unions, the only two unions agreed for one recognised union at Rawatbhata through secret ballot, but RAPSS did not consent for it, and because of this lack of consensus, it was not possible for them to proceed further with the verification process, as they 10 can proceed, only if all the parties agree for the same. As such, despite passage of more than a year, since expiry of recognition, the verification could not be done, and the Corporation was facing problems on day to day issues, in absence of one bargaining agent for the Site, and therefore, the Corporation, on its own, decided to introduce the “Check Off System”. Then replying para-9, it was pleaded, that the communication Annex.6 are based on the minutes of the meeting, held on 14.12.2004, it was attended by the representatives of the unions, minutes of which meeting has already been filed by the petitioner as Annex.5, and that, Annex.6 only indicates, that the petitioner as well as RAPKS agreed for single recognised union, and it nowhere states, that they have agreed for the “Check Off System”. It was also pleaded, that Anex.7 and 8 clearly reveal the lack of consensus among the trade unions, over having one recognised trade union. Then replying para-10, it was pleaded, that of course the registered trade unions are being involved, for deliberations, despite expiry of recognition. However, in view of the reservations of the Ministry of Labour, 11 in conducting verification through secret ballot, in absence of any statutory provision, and in view of the fact, that the respondents are facing problems, on day to day issues, in absence of one bargaining agent, the Corporation was left with no alternative but to start the process of verification through “Check Off System”, which is also a well-recognised system. Then in para-11 it was pleaded, that the respondents have no reservation about holding verification through secret ballot, in case the same is done by Central Industrial Relation Machinery, Ministry of Labour, Govt. of India, for Rawatbhata. Then replying the grounds, it was submitted, that the recognition of majority trade union, is not governed by any statutory provision, as such, the introduction of “Check Off System” cannot be claimed to be violative of any legal provision, and in view of the reservations of the Ministry of Labour, the respondent is left with no alternative but to introduce the “Check Off System”. It was then contended, that the Regional Labour Commissioner has not been impleaded as party, who is not forthcoming for the verification by secret ballot and therefore, in view of the 12 difficulties being faced, the respondents was left with no alternative. Then replying ground-C, it was pleaded, that it is not at all the intention of the respondent corporation, to create any type of conflict, as alleged by the petitioner, and that, there is no question of any interference as alleged by the petitioner-union. With these pleadings, it was prayed, that the writ petition be dismissed. Arguing the writ petition, both the learned counsels maintained the respective stands, as taken in the pleadings. Learned counsel for the petitioner placed strong reliance on the judgment of Hon’ble the Supreme Court, in Food Corporation of India Staff Union Vs. Food Corporation of India & Ors., reported in AIR 1995 SC 1344. Reliance was also placed on a judgment of Delhi High Court, in Badarpur Power Engineers and Workmen Union Vs. Union of India & Ors., reported in 1999 LLR 889, and another judgment of Bombay High Court, in Association of Engineering Workers Vs. WMT Cranes Ltd. & Anr., reported in 2001 LLR 173, to contend, that the “Check Off System”, which prevailed 13 once, has lost its appeals, and the method of secret ballot is being gradually accepted, and all concern should like to see that this method is so adopted, and adjusted, that it reflects the correct position, as regards the members of the different trade unions operating in one and the same industry, establishment or undertaking. The Association of Engineering Workers’ case was relied upon for the purpose of submitting, that compelling the workmen to get deducted the subscription on behalf of trade union from the wages of the workmen, prima-facie, amounts to act of unfair labour practice. On the other hand, learned counsel for the respondent relied upon the judgment of Karnataka High Court, in Workmen of Kampli Co-operative Sugar Factory Ltd. Vs. Mgt. Of Kampli Co-operative Sugar Factory Ltd. & Ors., reported in 1995(1) LLJ 727, to contend, that recognition of union is not regulated by any statutory provision, and the union cannot enforce the right of recognition, against the management, by a writ petition. No statutory or fundamental right is created 14 in favour of the union merely by its recognition, and the recognition, unless granted in terms of statutory provision, could not create any enforceable right in the union. Then another judgment of Andhra Pradesh High Court, in Visakhapatnam Port and Dock Workers Union Vs. Board of Trustee, Visakhapatnam Port Trust & Ors., reported in 1999 LAB I.C. 2308, was relied upon to contend, that after considering the judgment of Hon’ble the Supreme Court, in Food Corporation of India Staff Union’s case, the “Check Off System” was held to be valid. I have considered the submissions of the learned counsel for the parties, and have gone through the pleadings, and the documents, available on record, so also the five judgments cited by the learned counsel on either side. Before proceeding further, I may better first deal with the cases cited by learned counsel for the petitioner. 15 Taking up the judgment of Hon’ble the Supreme Court, in Food Corporation of India Staff Union’s case, on a close reading of the judgment in that case, what transpires is, that in the matter before Hon’ble the Supreme Court, the F.C.I. and the unions representing workmen, had agreed to follow the secret ballot system, for assessing the representative character of the trade unions, and Hon’ble the Supreme Court was only called upon to lay down, as to how the method of secret ballot should be tailored, to yield the correct results. Then Instruction No.25 of 1980, issued by the Office of the Chief Labour Commissioner, Ministry of Labour, Government of India, were brought to the notice of Hon’ble the Supreme Court, which stated, that on receipt of request from the management, or the union, for recognition, its eligibility for recognition is to be examined, some preliminary data is to be collected, and then exercise for determination of verification of all eligible unions is undertaken through secret ballot, and lays down detailed procedure. Then a look at page–4 of the judgment shows, that the entire direction was given on the agreement of the parties, 16 and the exercise was directed to be undertaken by the Chief Labour Commissioner (Central). In the case in hand, as noticed above, even the respondents had no objection in finding out the majority by secret ballot, and the Chief Labour Commissioner had commenced the process, however, as pleaded in para-6 and 7 of the reply, that it was during discussions before the Chief Labour Commissioner, that out of the three registered unions, only two unions agreed, and thus, there was lack of consensus, and the Chief Labour Commissioner expressed his inability to proceed further with the verification process, in absence of agreement between all the parties. The petitioner has of course pleaded in para-9, that now all the working three concern unions agreed for secret ballot, but then, firstly the other unions have not been impleaded as party, nor their consent has been produced on record, apart from the fact, that this part of the pleading is a subsequent addition by hand, which obviously cannot be taken on the face value, in absence of any authentic material being available before me, to be relied upon. It is a different story, that if all the three unions 17 were agreed for Secret Ballot System, then, since the respondent corporation has pleaded to be having no objection, the controversy would not have arisen. Thus, in the present case, it cannot be said, that the parties are agreed to follow the secret ballot system, as was the case in F.C.I.’s case. So far the Badarpur Power Engineers and Workmen Union’s case is concerned, that case again does not help the petitioner, as in that case, the petition was filed challenging the refusal of the government to refer the industrial dispute for adjudication, on the ground, that the demand for holding secret ballot cannot form the basis of an industrial dispute, and the learned Judge of Delhi High Court proceeded to consider, that the real issue now arisen is the method and manner of determination of majority character of trade unions, in the establishment. The learned judge then, straightway referred to the judgment of Hon’ble the Supreme Court in F.C.I.’s case. Then the learned Judge also relied upon a settlement (Industrial Settlement) whereunder secret ballot was agreed to be followed, and thus, on the strength of the settlement, and on the lines with 18 the judgment of Hon’ble the Supreme Court, the petition was decided. For the same reasons, as mentioned above, regarding the F.C.I.’s case, this judgment also doesn’t help the petitioner. So far the Association of Engineering Workers’ case is concerned, that obviously is entirely a different case, inasmuch as, of course in that case, the clause of the agreement, whereby undertaking was compelled, to deduct the subscription of the trade union, from the wages of the workmen was prima-facie found to be amounting to unfair labour practice. But then a detailed reading of the judgment shows, that the controversy was entirely different. In that case, the writ petition was filed by the petitioning union, against rejection of the prayer for interim relief. The petitioning union had filed a complaint, and the interim relief prayed was, to direct the company to forthwith permit two workmen to report to work, and to forthwith pay wages and benefits, in terms of the settlement dated 1.12.96, to all the workmen whose names are stated therein (Ex.G to the complaint), and to pay them arrears upto date, and to continue to pay wages and benefits in terms of the said 19 settlement. In that case, the employer, being respondent No.1, and the other union being respondent No.2, functioning in the respondent No.1, entered into a settlement dated 1.12.96, and according to Clause 22 thereof, an employee wanting to accept the benefits under the settlement, was required to sign a declaration form (specimen of which was set out as Annex. A). Then according to Clause 24, the arrears becoming payable to the workmen/staff under that settlement, by way of “ad-hoc” amount for the period from 1.9.96 to 31.12.96 were to be paid in two installments, and the company was to recover 10% of the arrears and adhoc amounts, and 5% of bonus, every year and remit to the union. Then Clause 26 contained two parts, first being, that the workmen/staff and/or Union shall not make any fresh demands during currency of this settlement involving additional financial burden to the company, and the other part was, that the workmen/staff covered by this settlement shall pay yearly subscription to Union. This second part of the stipulation obviously meant, that the person seeking to derive the benefit of settlement was to pay yearly 20 subscription to the union, being the respondent No.2 union. In this background, in para-4, it was noticed by the learned Judge, that this Clause 26 compels the workers to pay subscription to the second respondent, which means, that the workmen, who are members of the petitioner union, are compelled to become members of the second respondent-union. Then in para-5 it was noticed, that at the hearing of the complaint, it was contended, that by making payment in terms of Clauses 24 and 26, the members of the petitioner Union will be forced to become members of the respondent No.2. It was also noticed, that it is admitted position, that the settlement is not a settlement in conciliation, and therefore, not binding on all the workmen, working in the industrial Establishment. Considering these aspects, it was held, that the workmen employed with the first respondent, would not ipso-facto be covered by the settlement, and the members of the union which signed the settlement, and those who want to avail the benefits, were to give undertaking to accept the terms of the settlement, and therefore, giving such undertaking was not found to be amounting to any unfair 21 labour practice. Then Clause 24, entitling the employer to make deductions to the extent of 10% and 5% was upheld, and by relying upon another judgment of Hon’ble the Supreme Court in Balmer Lawrie Workers Union, Bombay & Anr. Vs. Balmer Lawrie and Company Ltd. & Ors., reported in 1985 (50) FLR (SC), it was found, that such deduction amounts to quid-pro-quo for the benefits acquired, and it was held that once persons who are not members of the Union which entered into the settlement, want to avail the benefit, the contribution to the fund of the Union, which entered into the settlement can neither be said to be unfair, nor a part of unfair labour practice. Then the question of deduction of bonus was left open. It is in this sequence, that the second part of Clause 26 was considered, whereby the workmen of the petitioner-Union were compelled to have deducted from the wages of the workmen, the subscription on behalf of the respondent No.2, and this was found to be amounting to an unfair labour practice, as the union may enter into an agreement with the employer for deduction on behalf of its members, if the members are so agreeable for the 22 purpose of directly deducting membership dues from the wages, but such a clause cannot be foisted on unwilling workers, or members of other unions. I fully agree with the principle propounded, that an unwilling workman cannot be compelled to get deducted this membership subscription of the union, nor can any such deduction be compelled from the members of the other unions. Obviously, every workman has a right to be a member of the union of its