IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 OP.No. 16114 of 1999(R) ----------------------- PETITIONERS: --------------------- * SUBSTITUTED 1ST PETITIONER. 1) ALL INDIA RUBBER BOARD EMPLOYEES UNION REG.NO.289/71 REPRESENTED BY ITS GENERAL SECRETARY P.N.DEVARAJAN, ASSISTANT, RUBBER BOARD, HEAD OFFICE KOTTAYAM. 2) PRASANNA KRISHNAN NAIR, ADMINISTRATIVE OFFICER CLASS-II, DEPARTMENT OF PROCESSING AND PRODUCT DEVELOPMENT, RUBBER BOARD P.O., KOTTAYAM, WORKING PRESIDENT, ALL INDIA RUBBER BOARD EMPLOYEES UNION. * ALL INDIA RUBBER BOARD EMPLOYEES ORGANISATION REPRESENTED BY ITS WORKING PRESIDENT OF JAMES JOSEPH, KOTTAYAM. SUBSTITUTED AS 1ST PETITIONER IN OP.16114/1999 AS PER ORDER DATED 9.10.2006 IN IA. NO.13774/2006. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.SADER E. REAZ SRI.DILEEP MOHANAN. RESPONDENTS: ---------------------- 1) RUBBER BOARD RREPRESENTED BY SECRETARY, OFFICE OF RUBBER BOARD, KOTTAYAM-2. 2) CHAIRMAN, RUBBER BOARD, KOTTAYAM-2. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI. JOSEPH KODIANTHARA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 16114 of 1999(R) APPENDIX PETITIONERS' EXHIBITS: P1 : COPY OF THE REGISTRATION CERTIFICATE ISSUED BY REGISTRAR OF TRADE UNION. P2 : COPY OF THE BYE-LAWS OF THE ALL INDIA RUBBER BOARD EMPLOYEES UNION. P3 : COPY OF THE CERTIFICATE OF AFFILIATION. P4 : COPY OF THE LETTER DATED 18.2.1971 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER. P5 : COPY OF THE LETTER DATED 13.3.1981 SENT TO THE 1ST RESPONDENT BY THE 1ST PETITIONER. P6 : COPY OF THE RUBBER BOARD (RECOGNITION OF SERVICE ASSOCIATION) REGULATION 1981 SUPPLIED BY 1ST RESPONDENT TO THE 1ST PETITIONER. P7 : COPY OF THE MINUTES OF THE DISCUSSION HELD ON 28.4.1999 BETWEEN 1ST PETITIONER AND THE 1ST RESPONDENT. P8 : COPY OF THE LETTER SENT BY THE 1ST PETITIONER TO THE 2ND RESPONDENT ON 1.8.1983. P9 : COPY OF THE LETTER DATED 26.2.1999 SENT TO THE 2ND RESPONDENT BY THE 1ST PETITIONER. P10 : COPY OF THE LETTER DATED 9.3.1999 OF THE 1ST RESPONDENT TO 1ST PETITIONER. P11 : COPY OF THE LETTER DATED 20.4.1999 BY THE 1ST PETITIONER TO THE 1ST RESPONDENT. P12 : COPY OF THE LETTER DATED 7.4.1999 ISSUED BY THE BOARD. P13 : COPY OF THE LETTER DATED 28.4.1999 ISSUED BY THE BOARD. P14 : COPY OF THE REPLY TO EXT.P13 THE 2ND PETITIONER SUBMITTED A REPLY DATED 10.5.1999 TO THE LETTER DATED 28.4.1999. P15 : COPY OF THE LETTER DATED 11.5.1999 ISSUED BY THE BOARD. P16 : COPY OF THE LETTER SENT TO THE 1ST RESPONDENT DATED 20.12.2000. P17 : COPY OF THE LETTER DATED 23.7.2001 BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- 'C.R.' V.K. MOHANAN, J. ------------------------------------ O.P. No. 16114/1999 - B ------------------------------------ Dated this the 31st day of July, 2009. J U D G M E N T Originally, this writ petition was preferred by the All India Rubber Board Employees' Union (Register No.289/1971) represented by its General Secretary and also by one Prasanna Krishnan Nair, being the Working President of the said union. As per order dated 9.10.2006 in I.A. No.13774/2006, this Court allowed to substitute All India Rubber Board Employees' Organisation represented by its Working President Sri. James Joseph, Kottayam as the first petitioner. The new organisation is the continuation of the erstwhile Union viz., All India Rubber Board Employees' Union which resolved to form an organisation viz., the present one, after merging with the Rubber Board Staff Association. Thus, it can be seen that the All India Rubber Board Employees' Union amalgamated and formed into a new union viz., the All O.P. No. 16114/1999 - B :2: India Rubber Board Employees' Organisation, which is the present petitioner. The prayer in this writ petition is to call for the records leading to Ext.P6 and to quash the same and also to quash Exts.P10, P12, P13 and P15. It is also prayed for a declaration that the first petitioner- Union is entitled to elect persons, who are not employees of the Board, as members of the Executive or Managing Committee as per Section 22 of the Trade Unions Act and according to the bye-laws of the 1st petitioner union. 2. According to the averments in the writ petition, as evidenced by Ext.P1 registration certificate, the Union has got registration with effect from 20.10.1971 and the Union was well established and recognised among the employees of the Rubber Board, right from its registration on the basis of registered bye-laws namely, Ext.P2. After the registration of the Union, the Union was undertaking the issues of the employees including the demand for wage revision and other service conditions and the elected O.P. No. 16114/1999 - B :3: leadership of the Union from time to time conducted negotiations with the Board and entered into settlements with the management. Ext.P4 shows that the Rubber Board has recognized the Union as the representative of the employees of the Board. 3. According to the petitioners, the problem started from 1981 onwards, as evidenced by Ext.P5 letter dated 13.3.1981 issued by the Rubber Board in which reference was made with respect to the Regulations connected with recognition of the Union. Ext.P6 is the said regulation referred in Ext.P5 letter of the management dated 13.3.1981. The main prayer in this writ petition is against Ext.P6, Regulation issued by the Chairman of the Rubber Board called as Rubber Board (Recognition of Service Associations) Regulations, 1981 (for short, 'the Regulations'). More particularly, the grievance of the petitioners is against Clauses 4 (e) and (f) of Ext.P6, which are prohibitory clauses forbearing the members of the O.P. No. 16114/1999 - B :4: Union from electing persons outside the Rubber Board other than employees of the Board. Exts.P10, P12, P13 and P15 are issued on the basis of Ext.P6 by which the Rubber Board is not prepared to recognise the Union on the ground that the President of the Union is an outsider ,who is not an employee of the Rubber Board. By Ext.P15, the Union was informed and allowed time till 30.6.1999 for re-electing the office-bearers of the Union as per Ext.P6 Regulations. It is made clear that if the list of office-bearers was not presented by that date, action for withdrawing the recognition of the service organisation would be taken. By Ext.P15, as a temporary measure, the office bearers of the Union, except Mr. A.C.Jose, were provisionally recognised. Along with I.A. No.13774/2006, the petitioners produced Ext.P17 which is a copy of letter No.1/5/BS/EST/2001 dated 23.7.2001 issued by the Rubber Board by which the newly formed organisation was provisionally recognised subject to the judgment in this writ petition and without prejudice to O.P. No. 16114/1999 - B :5: the contentions of the Board. So, the contention of the petitioners is that Ext.P6 Regulation to the extent, it does not recognise the office-bearers of the Union from out side the Board, is illegal and arbitrary. On the same grounds, the petitioners challenge Exts.P10, P12, P13 and P15 also. 4. The Rubber Board has filed a detailed counter affidavit fully supporting Ext.P6 Regulation and justifying the approach of the Rubber Board. According to the Rubber Board, Rule 12 of the Rubber Board (Service) Rules, 1961 provides that the conditions of Service of the members of the Service in respect of the matters for which no provision is made in the said rule, shall be the same as are for the time being applicable to officers of the Government of India of corresponding category. Hence, relying on Rule 5(g) of the Central Civil Services (Regulation of Service Associations) Rules 1993 (for short 'the Rules, 1993'), it is the contention of the Rubber Board that the decision of the Rubber Board in not recognising the Union is fully justified O.P. No. 16114/1999 - B :6: as the members of the Executive of the Service Association were not fully from amongst the employees/members. Therefore the election of a person, from outside, to the post of President of the Union is against the provisions of the Regulation as well as the Rules, which is quite applicable in the case of the Rubber Board also. According to the Rubber Board, Exts.P10, P12, P13 and P15 are only the steps of the Board to implement the norms strictly in the case of the first petitioner- Union. It is the specific case of the Board that the members of the Union are educated and experienced and they are competent to handle their rights and to negotiate with the management without any outside support. According to the Rubber Board, the above conditions are strictly implemented so as to keep politics away from the leadership of the Union and the staff of the Board. It is also their contention that the Board, as a statutory body, is carrying out sensitive matters affecting various interests of the rubber growers, dealers, O.P. No. 16114/1999 - B :7: manufacturers and consumers. Therefore, in view of the above fact, it is essential to maintain strict impartiality among the staff of the Board and it was under the above circumstances, the Board is not prepared to recognise the Union with office-bearers from outside. 5. I have heard learned counsel for the petitioners as well as the counsel for respondents. 6. At the outset, it is to be noted that it is a fact beyond dispute that right from 1971 onwards, the Board has recognised the Union with office-bearers from outside. Ext.P4 is one of the documents, which would show the sanction and recognition given to the first petitioner-Union by the Board. Ext.P6 was admittedly brought in the year 1981. As indicated earlier, it is a regulation promulgated by the Chairman of the Rubber Board. Though I have repeatedly gone through the counter affidavit of the respondents- Rubber Board and Ext.P6, I could not find out any provision by which powers are vested with the O.P. No. 16114/1999 - B :8: Chairman to promulgate a regulation like Ext.P6. Therefore Ext.P6 cannot be treated as a Regulation issued in exercise of the powers vested with the Chairman under any valid Act or Rules. Clauses 4 (e) and (f) are the relevant provisions against the first petitioner-Union and it has got grievance against the same, which do not permit the Union to elect a person as its office-bearer or member of the Executive Committee or Managing Committee, according to their choice, from outside other than from the employees of the Board. The learned counsel for the petitioners submitted that the above provision in Ext.P6 is in conflict with and contradictory to the provisions under section 6(e) and Section 22 of the Trade Unions Act and therefore Ext.P6 is liable to be set aside. 7. On the other hand, the learned counsel for the respondents-Rubber Board, resisting the above contention of the learned counsel for the petitioners, submitted that the course adopted by the Rubber Board is fully justified in O.P. No. 16114/1999 - B :9: view of Clause 12 of the Rubber Board (Service) Rules 1961. Clause 12 of the above Rule reads as: “Other conditions of service. The conditions of service of the members of the Service in respect of matters for which no provisions is made in these rules, shall be the same as are for the time being applicable to officers of the Government of India of corresponding category.” According to the respondents' counsel, in view of Clause 12 of the above Rules, the Board can adopt Rule 5 of the Rules, 1993 for considering grant of recognition to the Union. The learned Counsel very much stressed upon Rule 5(g) of the Rules,1993 which says “the Executive of the Service Association has been appointed from amongst the members only”. Thus, according to the learned counsel, if the appointment of the office-bearers of the Union or the management of the Union is not in accordance with Rule 5 of the Rules,1993, the Board can very well refuse to grant recognition. Hence according to the Rubber Board, O.P. No. 16114/1999 - B :10: Exts.P10,P12,P13 and P15 are just, proper and legal in view of the above statutory provisions even in the absence of Ext.P6 Regulation. 8. According to me, the above contention is quite untenable. The Rubber Board (Service) Rules, 1961 deals with the service conditions including appointment, qualifications, classification, scale of pay and other service conditions of the employees of the Rubber Board. The question of recognition of a service association cannot be identified as one among the above subjects. So, the alternative contention of the respondents that even if Ext.P6 Regulation has no force of rule or law, the policy and approach of the respondents in not recognising the Union saved by virtue of Rule 5 of the Rules,1993, is liable to be rejected. 9. In this juncture, it is also relevant to note that the Central Civil Services (Regulation of Service Associations) Rules, 1993 are mainly aimed at laying down the guidelines O.P. No. 16114/1999 - B :11: with respect to the recognition of service associations in the Central Government as well as other service areas including the services coming under the Comptroller and Auditor General and the defence service. The above rules are framed and made applicable to the service areas indicated above, since the provisions of forming trade unions are not applicable to the Government employees coming under the categories mentioned above. Therefore Rule 5 of the Rules,1993 cannot be pressed into service to deny recognition to the petitioner-Union. 10. It is pertinent to note that right from 1971 onwards, the employees of the Rubber Board were given the trade union rights on the basis of a registered trade union as per the registered bye-laws of such trade union. The whole issue originated during the year 1981. I have repeatedly gone through Exts.P10, P12, P13 and P15 proceedings of the Rubber Board. From those documents, it is discernible that the respondents-Rubber Board are not O.P. No. 16114/1999 - B :12: prepared to recognise the Union on the ground that the office-bearer of the Union is not a person or an employee of the Rubber Board. On the other hand, the office-bearer of the Union is not a person elected in terms of clause 4 (e) and (f) of Ext.P6 Regulation, which was issued by the Chairman without any authority of law. As evidenced by Ext.P4, the petitioner-Union was recognised by the Rubber Board right from 1971. Ext.P6 is issued during the year 1981 by which, the practice that was followed by the employees, electing persons of their choice from outside to the post of office-bearer of Executive Committee, was prohibited. Admittedly, the Union has got registration and it was carrying out its trade union activities as per the Trade Unions Act,1926. Section 6 (e) of the Trade Union Act,1926 reads as follows: “6. Provisions to be contained in the rules of a Trade Union.-- A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following O.P. No. 16114/1999 - B :13: matters, namely:- (a) xxx xxx xxxx (b)xxx xxx xxx xx (c) xxx xxx xxx xx (d) xxx xxx xxx xx (e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as (office-bearers) required under section 22 to form the executive of the Trade Union;” Section 22 of the Trade Unions Act,1926 is also relevant in this context, which reads as follows:- “Proportion of office-bearers to be connected with the industry.-- (1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected: Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order. O.P. No. 16114/1999 - B :14: Explanation:- For the purpose of this section, “unorganised sector” means any sector which the appropriate Government may, by notification in the official Gazette, specify. (2) Save as otherwise provided in sub-section, (1), all office-bearers of a registered Trade Union, except not more than one- third of the total number of the office- bearers or five, whichever is less, shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected. Explanation:- For the purposes of this sub- section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union. (3) No member of the Council of Ministers or a person holding an office of profit (not being an engagement or employment in an establishment or industry with which the Trade Union is connected), in the Union or a State, shall be a member of the executive or other office-bearer of a registered Trade Union.” The above provisions of the Trade Unions Act itself recognise the right of the workers to form association with a person in the leadership from outside the industry. The O.P. No. 16114/1999 - B :15: above provision of Trade Unions Act is sanctioned by the salient provisions contained in Article 19(1)(a) of the Constitution of India. The right to collective bargaining is a well recognised right of the workers in the modern industry. The provisions of the Industrial Disputes Act,1947 and other welfare Acts also recognise collective bargaining as a right of the workman and the right to form association of workers/employees. In order to attain industrial peace, negotiation of the issue is one of the well recognised primary steps. Now in this modern era, the establishments are led by the executives, most of them being the products of world famous Universities or Academies or Institutions, who are highly trained and educated professionals with whom the workers have to negotiate and bargain for their issues. In all establishments, the workers or the staff of such establishment may not be able to bargain and negotiate their issues with the highly qualified executives of the establishments. Therefore, in order to make the O.P. No. 16114/1999 - B :16: negotiations and for a meaningful bargaining, well-trained, experienced and educated leaders for the Unions are also inevitable. Thus, on examining the issue under the above social and logical basis, it can be seen that the denial of the right to elect a person from outside the industry, will, in effect, amount to imposing restrictions on the right to collective bargaining. When the management is armed with the oppressive measures, the workers may not be able to press their genuine demand effectively before the management unless there is effective leadership for the Union. So the denial of the right of the employees of Rubber Board to have their Union office-bearers in accordance with their bye-laws will amount to denial of their right to form association, which is a right recognised by the Trade Unions Act, of which the source is Article 19(1) (a) of the Constitution of India. Therefore, Ext.P6 is nothing, but an inroad to the Trade Union and constitutional rights of the employees of the Rubber Board. O.P. No. 16114/1999 - B :17: 11. In this juncture, it is relevant to note that the right, the Rubber Board employees were enjoying from 1971 onwards and its benefit as recognised by the Rubber Board as evidenced by Ext.P4, cannot be taken away by the Chairman of the Board by issuing a regulation for which he has no powers at all. Therefore, the respondents-Rubber Board cannot deny the right of the employees to have their leaders from outside. 12. The learned counsel for the respondents-Rubber Board invited my attention to the decision of the Apex court reported in the decision of State Bank of India Staff Association and another V. State Bank of India and others [AIR 1996 SC 1685] and took me through paragraphs 7, 8 and 9 of the above decision. In the above decision, the Supreme Court has held as follows:- “..........................It has also to be kept in view that the Industrial Disputes Act is a much later Act, which besides other matters, specifically, concentrates on harmonious relations between the employer and workmen, the disputes between the two and O.P. No. 16114/1999 - B :18: settlement thereof by negotiations with the assistance of their respective representatives. .............................” The above case had originated when the management, objected the retired employee in participating in the negotiations, representing the Union in negotiation with the management. In the above decision of the Apex court, Sections 6 and 22 of the Trade Unions Act, 1926 (16 of 1926) are reproduced and held in para 8, as follows:- “......................The provisions of Sections 6 and 22 indicate that an ordinary or a temporary member may be an office bearer, but they nowhere provide that such a member shall also have a right to negotiate with the management or the management would be under an obligation to negotiate with an office bearer of the Union, who is no longer in the employment of the industry which the trade union is connected”. On the strength of the above dictum, the learned counsel for the respondents submitted that the purpose behind Ext.P6 Regulation and also the stand of the respondents is justified. O.P. No. 16114/1999 - B :19: 13. On the other hand, learned counsel for the petitioners submitted that the facts and issue involved in this case are entirely different from the decision referred and cited by the counsel for the respondents. According to the learned counsel for the petitioners, the question here is related to the recognition of a Union. The learned counsel also distinguished the above decision on the basis of the particular facts involved in the said case. As per the bye- laws of the Union in that case, the retired employee cannot continue as the office-bearer of the Union. So in the light of the particular facts involved in that case, the representative of the Union was not even a member of the Union as per the bye-laws of the said union. But, in the present case, as indicated earlier, the question is related to the recognition of a Union and there is no legal provision or powers, enabling the Rubber Board to deny the right of the employees, which they were enjoying for the last several years, especially, as per the registered bye-laws of the O.P. No. 16114/1999 - B :20: Union, evidenced Ext.P2, which confer right on the employees to elect persons from outside the industry, namely, the Rubber Board. If that be so, Ext.P6 to the extent it denies the right of the employees to elect persons of their choice from outside and especially, when such a denial is against the provisions of Sections 6(e) and 22 of the Trade Union Act, 1926, is highly arbitrary and illegal. 14. Therefore, clauses 4 (e) and (f) of Ext.P6 Regulation are set aside as illegal and arbitrary. Exts.P10, P12,P13 and P15 to the extent the same are not recognising the Union for the reason that the office-bearer of the Union is an outsider of the industry, are also set aside. There would be a declaration that the 1st petitioner- Union is entitled to elect persons, who are not employees of the Board, as members of the Executive or Managing Committee in accordance with Section 22 of the Trade Union Act,1926 and according to the bye-laws of the 1st petitioner union. In the light of above finding and relief O.P. No. 16114/1999 - B :21: granted, the respondents-Rubber Board is directed to issue appropriate orders recognising the first petitioner-Union. V.K. MOHANAN, JUDGE app/-