IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2010 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition No.21663 of 2001 and M.P.Nos.32028 of 2001 & 372 of 2002 Tamil Nadu State Apex Co-operative Bank Employees Union (Ren.No.2484) rep. By its General Secretary .. Petitioner Vs 1. State of Tamil Nadu rep. By its Secretary to Government, Department of food,Co-operation and Consumer protection, Fort St.George,Chennai.9 2. Joint Commissioner of Labour, D.M.S.Compound, Teynampet,chennai.6 3. Management of TamilNadu State Apex Co-operative Bank Ltd., rep. By its Special Officer, No.4 (Old.No.233), N.S.C Bose Road,Chennai.1 4. Tamil Nadu State Apex Cooperative Bank Dr.Ambedkar Employees Union rep. By its General Secretary No.4 (Old.No.233), N.S.C Bose Road,Chennai.1 5. National Commission for S.C & S.T rep. By its Director, Sastri Bhavan, Haddows Road, Chennai.34 https://hcservices.ecourts.gov.in/hcservices/ 6. Registrar of Cooperative Societies 170, E.V.R.Periyar High Road, Kilpauk, Chennai.10 .. Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus forbearing the first, fifth and sixth respondents from interfering with or requiring the third respondent bank to show any partiality or favour or confer recognition on the fourth respondent union without following the Code of Discipline adopted in the State of Tamil nadu for the purpose of recognition of trade unions and in any event direct the first, fifth and sixth respondents to abstain from interfering in an issue relating to Labour and recognition of trade unions and further direct the third respondent bank not to be persuaded by any such direction from the first, fifth and sixth respondents and further direct the fourth respondent to stake its claim for recognition in accordance with the Code of Discipline adopted by the Labour Department in the State of Tamil Nadu for the purpose of recognition of trade Unions. For petitioner : Mr.V.Prakash (Senior Counsel) for Mr.G.Ramapriya For Respondents : Mr.S.Sivashanmugam (G.A) (R1 & R2) Mr.S.Jayaraman (R3) Mr.J.Thilagaraj (R4) Mr.S.Rajendran (R5) O R D E R The petitioner is a registered Trade Union known as "Tamil Nadu State Apex Co-operative Bank Employees Union". Its members are the employees working in the Apex Co-operative Bank in the State of Tamil nadu. According to the petitioner, when the writ petition was filed its total membership was 411 out of the total number of 425 employees. This Trade Union was established in the year 1958. All these years, the petitioner-Trade Union, which represents the majority of the workmen of the Apex Cooperative Bank, has been the sole bargaining agent of the employees with the management. It is further stated that the petitioner-Trade Union had been duly recognised by the Bank Management (third respondent). It is also stated that all these years, the petitioner-Trade Union had negotiations with the third respondent-management in respect of Labour matters and has also entered into settlements under Section 18(1) of the Industrial Disputes Act, thereby representing the majority of the employees. The petitioner-Trade Union had been https://hcservices.ecourts.gov.in/hcservices/ allotted a room in the premises of the third respondent Bank in Chennai besides providing free electricity by the Bank. This, according to the petitioner, has been provided for the petitioner because it happens to be the recognised Trade Union all these years. 2. The fourth respondent, " Tamil Nadu State Apex Cooperative Bank Dr.Ambedkar Employees Union" is also a registered Trade Union established in the year 2000. Its members are also the employees of the Apex Co-operative Bank in the State of Tamil Nadu. Even according to the fourth respondent, there were only 121 members in the fourth respondent Trade Union. 3. While so, the third respondent-Management has allotted a room in the Bank premises to the fourth respondent with free electricity supply. The petitioner is aggrieved by the same. According to the petitioner, this amounts to unfair labour practice which is prohibited under section 25-T of the Industrial Disputes Act. It is further submitted that by showing such favour to the fourth respondent, the third respondent-Management, by implication is organising the employees to rally behind the fourth respondent as its members. Since such activities of the third respondent are prohibited under section 25-T of the Industrial Disputes Act, the same cannot be continued. In those circumstances, the petitioner has come forward with the present writ petition with several prayers. But the learned senior counsel appearing for the petitioner would submit that he restricts the prayer made in the writ petition only to the extent that the third respondent should be directed not to continue to allow the fourth respondent to enjoy the facility of room and electricity in the bank premises and not to show any favour as provided in Schedule V of the Industrial Disputes Act. 4. In the counter-affidavit filed by the third respondent- Bank-Management it is stated that neither the petitioner Trade Union nor the fourth respondent is a recognised Union. It is further stated that however, the petitioner has been enjoying the facility to have a room with free electricity in the Bank premises all these years. In respect of the fourth respondent, it is stated that the fourth respondent Union got registered in the Month of November 2000. As per the letter sent by the fourth respondent on 17.11.2001, the membership of the fourth respondent is 121 whereas the membership of the petitioner Trade Union is 411 out of the total number of 425 employees. It is further stated that out of 121 members of the fourth respondent Trade Union, there are several employees who belong to S.C and S.T communities. There was a request from the fourth respondent to allot a room for them. The matter was discussed with the higher authorities at the Government level, Cooperative Department and the Registrar of Cooperative Societies. In pursuance of the discussion, the Special officer was instructed by the aforesaid authorities to allot a room for the fourth respondent Union. It is further stated that the National Commission for SC and https://hcservices.ecourts.gov.in/hcservices/ ST communities also directed the third respondent to allot a room for the fourth respondent. Accordingly, a room was identified and allotted to the fourth respondent. It is further stated that apart from the petitioner and the fourth respondent, few more Trade Unions like TNSC Bank Employees' Union, TNSC Bank Officers' Union and TNSC Bank Officers' Association have also been allotted similar rooms. Therefore, according to the third respondent, it cannot be said that allotting a room to the fourth respondent would amount to unfair labour practice. It is further stated that the third respondent has been following rules prescribed for recognition of a Trade Union. 5. The learned counsel for the third respondent would submit that mere allotment of a room to the fourth respondent to enjoy will not amount to unfair labour practice which is prohibited under Section 25 T of the Industrial Disputes Act. Therefore, according to the third respondent, the writ petition is liable to be dismissed. 6. The fourth respondent has filed a separate counter . The averments in the counter are that there are 124 members in the fourth respondent Union. It is further stated that the total number of clerical staff in the third respondent bank is around 425. It is further stated that the fourth respondent Union staked a claim for allotment of a room only based on the capacity of the membership. The fourth respondent-Union, never expects any sort of privileges or concessions from the management out of the way. The demands of the fourth respondent would be substantiated only on the strength of the employee and not on any other factors. When the fourth respondent was about to be successful in persuading the management to allot a full fledged room for their office, the present writ petition has been filed only with an ulterior motive by the petitioner. It is further stated that there is no undue favoritism or privilege shown to the fourth respondent by the management Bank. It is further stated that a few of the members of the Bank launched SC & ST Employees Welfare Association, which evolved later as Dr.Ambedkar Union. It is further stated that the State Government, National Commission for SC & ST and the Registrar of Cooperative Societies are not at all extending any undue favour or privilege to the fourth respondent Union. By the strength of the fourth respondent, the fourth respondent is entitled for the allotment of a room in the bank premises. There is absolutely no privilege or favour shown by the Management to the fourth respondent. It is further stated that the fourth respondent is not a minority Union. The said Union is entitled for recognition and all other rights fully based on their strength. . It is also stated by the learned counsel for the fourth respondent that mere allotment of a room with free electricity would not amount to any favoritism so as to fall within the mischief of Section 25 T of the Industrial disputes Act. https://hcservices.ecourts.gov.in/hcservices/ 7. Today, an additional counter has also been filed by the General Secretary of the fourth respondent Trade Union, wherein in paragraph 4, he has stated as follows: " I submit that Dr.Ambedkar Union is meant not only for SC and ST employees of the TNSC Bank, but for all the employees, cutting across the barriers of community, caste, creed and religion. Any employee of the TNSC Bank, irrespective of his community or caste, is entitled to become a member of the Dr.Ambedkar Union. The membership is not restricted only to SC and ST employees. There are several members in the Dr.Ambedkar Union who do not belong to SC or ST communities. The Dr.Ambedkar Union has been very vehemently and forcibly raising its voice not only for the welfare and the interests of the SC and ST employees but also for all other employees in general. The Dr.Ambedkar Union submits demands to the management of the TNSC bank concerning not only the SC and ST employees but also all the employees in general. This generic approach and attitude of our Dr.Ambedkar Union has enhanced its reputation." 8. The learned counsel for the fourth respondent would vehemently submit that this writ petition is surely motivated as there is no substance in the same. He would further submit that there has been no unfair labour practice by the third respondent as against the petitioner Trade Union and in favour of the fourth respondent Trade Union and therefore, this writ petition is liable to be dismissed. 9. I have considered the rival submissions and also perused the records carefully. 10. It is almost the admitted case of all the parties to the lis that the petitioner Trade Union was the sole bargaining agent from the year 1958 onwards with the Management, representing majority of the employees of the third respondent, Bank. It is also not in dispute that in all these years, it was only the petitioner Trade Union which entered into negotiations with the management representing the majority of the employees resulting in settlement under Section 18(1) of the Industrial Disputes Act. Therefore, though it is stated in the counter-affidavit of the third respondent that the petitioner Union has not been recognised by the Management, in my considered opinion, by the very conduct , as I have narrated above, the third respondent by implication, has recognised the petitioner Trade Union. In this regard, I may also refer to the Industrial Disputes Act, where, I find no specific provision, which provides for either recognition of the Trade Union or mode of recognition of a Trade union by the management. However, there is a https://hcservices.ecourts.gov.in/hcservices/ reference to the term, "recognised trade union" in V Schedule to the Industrial Disputes Act.. Section 25-T of the Industrial Disputes Act prohibits unfair labour practice. The said provision reads as follows: " No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 or not, shall commit any unfair labour practice." 11. The term "unfair labour practice" has been defined in the V Schedule of the Act. Clause 1 and 2 of V Schedule reads as follows: "I. On the part of employers and trade unions of employers: 1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say: a) threatening workmen with discharge or dismissal, if they join a trade union ; b) threatening a lock-out or closure, if a trade union is organised; c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union at organisation. 2. To dominate, interfere with or contribute support, financial or otherwise to any trade union, that is to say: a) an employer taking an active interest in organising a trade union of his workmen; and b) an employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to is members, where such a trade union is not a recognised trade union." (emphasis supplied) 12. It could be seen in clause 2(b), the 'term' "recognised trade union" has been employed. As I have already stated, there is no definition of the said term 'recognised trade union" anywhere in the Act. Therefore, whether a union is a recognised Union or not has to be inferred only from the way in which said union be all along treated by the Management. For example, going by the majority of the Trade Union, if the same has been all along called for talks, for settlement under Section 18(1) of the Industrial Disputes Act., then it can safely be concluded that the management has recognised the said union. In this regard, the learned senior counsel appearing for the petitioner relies on a Division Bench Judgment of this Court in MRF United Workers Union rep. By its General https://hcservices.ecourts.gov.in/hcservices/ Secretary, Arakkonam Vs Government of Tamil nadu rep. By its Secretary, Labour and Employment Department and others reported in 2009-IV -LLJ.685, wherein, the Division Bench had an occasion to deal with the recognition of a trade union and unfair labour practice. In paragraph 23 of the said judgment, the Division Bench has held as follows: "The desirability to have a truly independent and representative union of workmen to represent their cause cannot be lost sight off. A Management may think that the leadership of a particular trade union is militant, yet even such a union when it obtains a recognised status, it has to act within the four corners of law and discipline. Where the number of workmen is very large, it is also in the interest of the management to have a truly representative collective bargaining agent to represent the workmen so that the Mangement can discuss with it the problems governing the production and industrial peace and the decisions arrived at will have to be accepted by all the workmen. This being so, the question as to who should be the representative of the workmen is an aspect which has to b e decided by the workmen themselves. It cannot be left to the Management that it will recognise a particular Union which it considers to be representative of the workmen. The Trade Unions Act,1926, which is an Act to provide for the registration of Trade Union, is there on the statute book for the last over 80 years. It is no longer permissible nor possible for any management to disregard a trade union registered under the Act, and having a large following. If it does so, it would be at its own peril." 13. A reading of the entire judgment, with emphasis to paragraph 23, would make one to clearly understand that the trade Union which establishes larger membership shall be construed as a recognised Trade Union representing the majority of the employees. In the case on hand, at the time when the writ petition was filed, the petitioner Union had 411 members out of 425 employees whereas the fourth respondent had only 121 members. Applying the principles stated in the Division Bench judgment and having regard to the conduct of the management in entering into settlements under Section 18(1) of the Act all these years with the petitioner Union, I have to hold that by implication, the third respondent Management has recognised the petitioner Trade Union. Therefore, the said Trade Union can enjoy certain privilege which the management can extend. 14. Insofar as the fourth respondent is concerned, it is not in dispute that the said Trade Union has not been recognised either expressly or impliedly. Even on their own showing as stated in https://hcservices.ecourts.gov.in/hcservices/ the counter filed by the fourth respondent, its membership is only 121 out of 425 members. It is also stated by the learned counsel for the fourth respondent that though several requests were made to the management to recognise the fourth respondent also, the same has not been done so far. In my considered opinion, if the fourth respondent can show that it has got majority membership so that it can also represent larger number of employees, certainly it can again approach the third respondent for recognition. If the genuine claim of the fourth respondent is not considered by the third respondent, the remedy for the fourth respondent lies elsewhere in an appropriate procedings. In this writ petition, this Court cannot be called upon to decide as to whether the third respondent has reasons either to recognise or not to recognise the fourth respondent. When there is no dispute that the fourth respondent has not been so far recognised by the third respondent, this Court need not go into the other questions regarding the eligibility of the fourth respondent for getting such recognition from the third respondent. 15. The next question is as to whether the fourth respondent can enjoy certain privileges such as occupation of a room with free electricity in the bank premises. The grievance of the petitioner Trade Union is that it amounts to unfair labour practice as prohibited under Section 25-T of the Industrial Disputes Act. As I have already stated, the contention of the third and fourth respondents is that mere allotment of such a room with free electricity facility to the fourth respondent would not amount to unfair labour practice and therefore, the same cannot be prohibited by this Court. In this regard, to resolve the said issue, I may refer to Section 25 T and the V Schedule of the Industrial Disputes Act. As I have already stated, Section 25 T of the Act prohibits unfair labour practice. What is unfair labour practice is defined under Section 2 (ra) of the Industrial Disputes Act, which reads as follows: "unfair labour practice" means any of the practices specified in the Fifth schedule" 16. Now, let me look into clause 2 of the V Schedule. It defines the following as unfair labour practice, namely to dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say: (a) an employer taking an active interest in organising a trade union of his workmen; and (b) an employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to its member where such a trade union is not a recognised trade union." (Emphasis supplied) 17. In the instant case, there is no controversy that the fourth respondent is not a recognised trade union. The fourth https://hcservices.ecourts.gov.in/hcservices/ respondent which has got only 121 members out of 425 total number of employees, quite naturally, may attempt to organise the majority of workmen in the bank to become its members. Of course, the fourth respondent has got every right to do so. But at the same time, the third respondent cannot extend any help to the fourth respondent so as to facilitate the fourth respondent to succeed in its efforts. As rightly pointed out by the learned senior counsel for the petitioner, allotting a room to the fourth respondent in the bank premises by the third respondent would be an indication to the workmen in the bank that the fourth respondent has also been recognised so as to represent the employees of the bank. It is not a mere allotment of a room to the fourth respondent by the third respondent as it is sought to be interpreted by the learned counsel for the third and fourth respondents. In my considered opinion, it is something more. Surely, it is an implied indication to the members to join hands with the fourth respondent. This, in my considered opinion, surely is a favour to the fourth respondent to organise the workmen to become its members. Clause 2 further states that contribution of any support , financial or otherwise for such unrecognised union, is an unfair labour practice. In my considered opinion, allotting a room to the fourth respondent would amounts to contribution of support to the fourth respondent by implication to indicate to the workmen to support the fourth respondent. Thus, in my view, the act of the third respondent allotting a room to the fourth respondent is surely a support amounting to unfair labour practice, which is prohibited under Section 25 T of the Industrial Disputes Act. 18. The learned counsel for the fourth respondent would also bring to the notice of this Court that on few occasions, the fourth respondent was also called upon by the bank for negotiation in respect of labour disputes. It is also stated by the fourth respondent that as a matter of fact, some settlements were reached between the fourth respondent and the bank management, but, before such settlements could be drafted and signed by the bank management and the fourth respondent, the said attempt was prevented by the petitioner by filing some litigations. This would again go to show that though the fourth respondent is not representing the majority of the employees, still, the third respondent has entered into negotiations with the fourth respondent. This would, surely, indicate that the bank management has got some soft corner for the fourth respondent. That is yet another reason why such a room was allotted to the fourth respondent by the third respondent. In the counter filed by the third respondent, as I have already stated, it has been stated that the request of the fourth respondent for allotment of a room was discussed at higher level, namely, at the level of the Government, Registrar of Cooperative Societies etc. I am not able to understand as to whether there is such a need for the management to have discussions at the Governmental level. To recognise and not to recognise a trade union is for the management to decide, based on the membership for a particular trade union. Allotting a room to the https://hcservices.ecourts.gov.in/hcservices/ recognised union is also within the wisdom of the management. In this matter, neither the Government nor the other authorities have anything to do. Apart from that, it is also stated that the National commission for SC and ST, has directed the third respondent to allot a room to the fourth respondent by 31.10.2001 and according to the said direction, a room was allotted. This stand is also not understandable. It is not as though the fourth respondent trade union represents only the employees belonging to SC and ST communities. In paragraph 4 of the additional counter filed by the fourth respondent, which I have already extracted in this judgment, the General Secretary of the fourth respondent has stated that this trade union is meant not only for SC and S T employees but for all the employees of TNSC Bank, cutting across the barriers of community, caste, creed and religion. If that is so, I do not understand as to how the National Commission for SC and ST could interfere in this matter and issue such a direction to the third respondent to