*THE HONOURABLE SRI JUSTICE C.V. RAMULU +W.P. No. 28054 of 2009 %12-03-2010 #I. Srinivasa Rao & Others. ….petitioner Vs. $ The Commissioner of Labour, Musheerabad, Hyderabad & Others. …. Respondents !Counsel for the petitioner: Sri A.K. Jayaprakash Rao Counsel for the Respondents: G.P. for Labour Mr. C.R. Sridharan <Gist : >Head Note: ? Cases referred: 1. 2004 (2) ALT 122 2. 2002 (2) LLJ 339 THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.28054 of 2009 ORDER: This writ petition is filed seeking a Mandamus declaring the action of the second respondent in issuing Letter No.B1/2376/2009 dated 15.12.2009 in not including the names of 147 Badli Workers to participate in the ensuing elections which is being conducted on 30.12.2009 as arbitrary, illegal and amounts to unfair labour practice and also violative of Articles 14 and 16 of the Constitution of India. This Court, while ordering notice before admission on 23.12.2009, directed that proposed election may go on, however, the Returning Officer shall permit the petitioners and other Badli Workers to cast their vote, but their votes shall be kept aside. The short question that arises for consideration, in this writ petition, is as to “whether the Badli Workers of an Industry are entitled to participate in the voting when verification of membership of the Unions is being conducted.” The relevant facts for disposal of the writ petition are that the petitioners are Badli Workers. According to them, there are 147 Badli Workers working under the control of third respondent from the year 2005 onwards. The petitioners and others have paid subscription and joined as members in fourth and fifth respondent Unions and have been paying subscription every month. While that being so, the second respondent issued a notice to conduct secret ballot election to determine the status of majority of Union, operating under the control of third respondent. The fourth and fifth respondent Unions have also made representations stating that the Badli Workers who are working for the last five years were not included in the voters list and they may be included for the purpose of their participation in the verification process. But curiously, on the basis of representation of third respondent that Badli workers are working in the place of permanent workers, therefore, their names were not included in the voters list, and as such the second respondent denied 147 Badli Workers to participate in the verification process. It is the case of the petitioners that a Badli Worker is also a worker within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and he can be a member of the Trade Union and therefore, not permitting the Badli Workers to participate in the Trade Union activity also amounts to unfair labour practice apart from being arbitrary and illegal. In this regard, the learned counsel for petitioners relied upon the judgment in PANYAM CEMENTS EMPLOYEES UNION AFFILIATED TO INTUC V. COMMISSIONER OF LABOUR AND ORS.[1] and drawn the attention of the Court to paragraphs 8 to 16 of the said judgment, which reads as under: “8. The short question is whether badli workmen/employees are workmen for the purpose of the Trade Unions Act? 9. Section 2(s) of the I.D. Act defines 'workman' as under. (s) 'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express of implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or, as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-- (i) who is, subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an Officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions, mainly of a managerial nature. 10. The definition of the workman is in two parts i.e., inclusive part and exclusive part. Every person employed in an industry to do any manual, unskilled, skilled, clerical and other types of works is a workman. As per the exclusive part, a person who is subject to the Air Force Act, the Army Act or the Navy Act, a person who is employed in police service and a person who is in managerial or administrative post or a person employed in supervisory capacity drawing wages exceeding Rs. 2,500/- per month are not workmen, A reading of the inclusive part of the definition 'workman' of the I.D. Act, would show that it does not make any distinction between the persons who are paid salaries as per the Cement Wage Board or the persons who are paid daily wages or persons who are badli workers. 11. The term 'badli workers' is not defined in the I.D. Act. Nonetheless, it must be held that badli workers also fall within the definition of workman and badli workers are workmen for the purpose of the I.D. Act entitled to the benefits under all industrial laws. 12. Section 2(s) of the I.D. Act defines 'unfair labour practice' as any practice specified in the Fifth Schedule. Fifth Schedule to the I.D. Act enumerates a number of unfair labour practices on the part of workmen as well as on the part of the employer. Clause 4 of Part I of the Fifth Schedule reads as under: 4. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say: a. discharging or punishing a workman because he urged other workmen to join or organize a trade union; b. discharging or dismissing a workman for taking part in any strike (nor being a strike which is deemed to be an illegal strike under this Act); c. changing seniority rating of workmen because of trade union activity; d. refusing to promote workmen to higher posts on account of their trade union activities; e. giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union; f. discharging office-bearers or active members of the trade union on account of their trade union activities. 13. In relation to the trade union, as can be seen from the above, any action on the part of the employer/workmen to discourage a workman from participating in a trade union activity is unfair labour practice. Badli workmen are workmen and, therefore, if any management disapproves a "trade union of badli workers" or discourages badli workers to join a trade union or denies voting right to badli workers, the same would amount to unfair labour practice. If the interpretation by Sri G. Veera Reddy is accepted, the same would give right to the management to deny trade union right. Such interpretation would be ex facie contrary to the intention of the legislation and cannot be countenanced. Therefore, badli workers under law cannot be excluded from voting. 14. 'Trade union' is defined in the Trade Unions Act as any combination whether temporary or permanent, formed primarily for the purpose of regulating relations between the workmen and employers or between workmen and the workmen or between employers and employers. 'Trade dispute' is defined in Section 2(g) of the Act as under: (g) "trade dispute" means any dispute between employers and workmen, or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and "workmen" means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises; 15. Reading the definitions of 'trade union' and 'trade dispute' it must be held that any dispute inter alia between the employer and workmen connected with the employment or non- employment, terms of employment or conditions of labour of any person would be a trade dispute and the term workman includes all persons employed in the trade or industry. Any dispute between the badli workers and the management is also a trade dispute. It is for this reason that when there was a settlement between the Mazdoor Union and Panyam Cements in June, 2000, both the parties agreed on certain terms regarding assured employment to badli workers. In that view of the matter, learned Counsel for the Mazdoor Union is right that badli workers cannot be excluded from participating in the election to recognize the majority trade union. If that interpretation is accepted, that would lead to badli workers to lurch in a helpless state of suspended animation. 16. The submission of learned Counsel for the Employees Union that only permanent wage board employees can be included in the voters' list cannot be accepted. Similarly, the objection of the Deputy Commissioner that forty-one badli workers did not complete 240 days from 1999 onwards is misconceived. A person who is employed even for a day is a workman for the purpose of industrial law and no management can refuse the benefits allowed under law and the Constitution. After reading the minutes of the joint meeting dated 26-8-2003, which is extracted hereinabove, I am convinced that permanent wage board employees who retired and/or who were promoted to managerial cadre after 1-2-2003 are alone agreed to be excluded from the voters' list and not badli workers as contended by the Counsel for Employees Union.” The learned counsel also relied on the judgment in GOVERNMENT TOOL ROOM AND TRAINING CENTRE'S SUPERVISORY AND OFFICERS' ASSOCIATION, BANGALORE AND ANR. v. ASSISTANT LABOUR COMMISSIONER AND DEPUTY REGISTRAR OF TRADE UNIONS, BANGALORE DIVISION-I, BANGALORE AND ORS.[2] and drawn the attention of the Court to paragraphs 6 to 10 of the said judgment, which reads as under: “6. The Trade Unions Act of 1926 is a pre-Constitution Law. The object of the Trade Unions Act is to provide for the registration of a Trade Union and in certain respects to define the law relating to Trade Union. Section 2 defines various terms including 'Trade Dispute' and 'Trade Union'. Chapter II provides for registration of Trade Union. Section 5 provides for an application being made for registration to the Registrar. Section 6 provides for provisions to be contained in the rules of a Trade Union. Section 7 provides for power to call for further particulars in the matter. Registration is provided under Section 8 of the Act. To understand the dispute between the parties, it is relevant to note the two definitions in Section 2(g) and 2(h). The said definitions read as under: "(g) "Trade Dispute" means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person and 'workmen' means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises; and (h) "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between the workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions". 7. In the light of these two definitions, it is clear to me that the word 'workmen' under the Trade Unions Act includes all persons employed in a Trade or Industry. It is not a restricted definition as in any other enactment of Labour Laws. When the Act itself provides for a wider definition and for a wider meaning of that definition, the Courts cannot narrow it by its decision. That would be against the very object of the Trade Unions Act itself. It is a well-settled principle of law that two conditions are necessary for interpreting an earlier enactment in the light of the provisions of a later Act. They are: (1) The two Acts of the Legislature must be in pari materia, that is to say that they form a system or code of Legislature; and (2) The provisions in the earlier Act is ambiguous. 8. In the case on hand, there is no ambiguity in the light of the definitions of the Trade Unions Act. It is relevant to note the judgment of the Supreme Court in the case of Tirumala Tirupati Devasthanam v. Commissioner of Labour and Ors. The Supreme Court was considering in the said case with regard to registration of a Trade Union. The Supreme Court in para 4 rules as under: "It would be apparent from this definition that any group of employees which comes together primarily for the purpose of regulating the relations between them and their employer or between them and other workmen may be registered as a Trade Union under the Act. It cannot be disputed that the relationship between the appellant and the workmen in question is that of employer and employee. The registration of the association of the said workmen as a Trade Union under the Act has nothing to do with whether the said wings of the appellant are an 'industry' or not. We are, therefore, of the view that the High Court went into the said issue, although the same had not arisen before it. Since the findings recorded by the High Court on the said issue, are not germane to the question that falls for consideration before us, we express no opinion on the same and leave the question open". The Supreme Court, in the said judgment has made it clear that any group of employees may be registered as a Trade Union under the Act for the purpose of regulating the relations between them and their employer or between themselves. 9. It is pertinent to refer to a leading case of this Court in Registrar of Trade Unions in Mysore v. M. Mariswamy. That was a case in which the employees of the Provident Fund Organisation got themselves registered under the Trade Unions Act. The said registration was subsequently withdrawn by the Department. The said withdrawal was the subject-matter of a litigation. The said litigation ultimately reached this Court. This Court in para 7 rules as under; "It is clear from the definition of the expression 'Trade Union' that it could be a combination either of workmen or of employees or of both, provided it is formed primarily for one of the purposes mentioned in Clause (h) of Section 2 of the Act. It is, therefore, possible to have a Trade Union consisting only of employers. The emphasis in Section 2(h) is on the purpose for which the Union is formed and not so much on the persons who constitute the Union". 10. In the light of the judgment of the Supreme Court and in the light of the judgment of this Court read with definitions in the Trade Unions Act, it is clear to me that the emphasis is on the purpose for which the Union is formed and not so much on the persons who constitute the Union. In the case on hand, the registration is not granted on the ground that the persons who constitute the Union are not workmen. Therefore, in the light of a clear definition and in the light of the case-laws, the endorsement has no legs to stand in law. The endorsement, in these circumstances, is set aside. A direction is issued to the respondents to register the petitioner as a Trade Union, if the petitioner otherwise fulfils all other legal requirements in terms of the Trade Unions Act.” Whereas Mr.C.R.Sridharan, learned counsel appearing for third respondent strenuously contended that it has become the order of the day to approach this Court for each and every industrial cause under Article 226 of the Constitution of India without there being any basis and without there being any statutory obligation or statutory flavour in the Code of Discipline to be implemented by the respondents. According to the learned counsel, there is no statutory duty or public duty cast on the respondents, therefore, no Writ of Mandamus lies. Further, the Code of Discipline cannot be enforced under Article 226 of the Constitution of India. The learned counsel has drawn attention of the Court to the Procedure for Verification of Membership of Unions for the purpose of recognition under the Code of Discipline, which reads as under: “(6) The verification Officer will thereafter intimate, in writing, to the unions concerned that the verified lists of their respective members are ready for inspection by the union representatives at an appointed time and place. The unions will also at the same time be informed that after inspection of the verified list of members of the rival union(s) they should send, in writing, their specific objections, if any, to the entries in these lists, within 10 days or a longer period if the number of objections is likely to exceed 10,000 on the basis of one additional day for every 2000 objections and over 10,000 of the date of inspection. It should be made clear to the unions that general and vague objections like inflated membership etc., will not be considered; the objections should give names of persons whose membership of a union is objected to and the reasons therefor. The union representatives will be allowed to make notes from the verified lists shown to them in the presence of the Verification Officer; they will, however, not be allowed to take any of the lists, nor a copy of the lists will be given to them. ( 7) The objections received from the unions will then be verified by personal interrogation, by the Verification Officer of the member on the basis of the following systematic random sampling system:- (i) If the Objection List furnished by a union consists of 500 or less names of members, the number of persons to be personally interrogated should be 20% subject to minimum of 100: (ii) If the Objection List furnished by a union consists of more than 500 but not more than 1,000 names, the number of persons to be personally interrogated should be 15% subject to a minimum of 100: (iii) If the Objection List furnished by a union consists of more than 1,000 but not more than 2,000 names, the number of persons to be personally interrogated should be 10 per cent subject to a minimum of 150: (iv) If the Objection List furnished by a union consists of more than 2,000 but not more than 5,000 names, the number of persons to be personally interrogated should be 5 per cent subject to a minimum of 2,000 and (v) If the Objection List furnished by a union consists of more than 5,000 names, the number of persons to be personally interrogated should be 2 per cent subject to a minimum of 250. The persons selected for personal interrogation should among other things be asked whether they had paid subscription for 3 months within a period of six months from the date of reckoning and if so, the amount of subscription paid, the months for which it was paid etc. The Verification Officer will maintain a list of members personally interrogated, giving their ticket numbers, name of section where working, the result of personal interrogation etc. (8) Where the random sample check reveals that certain members interrogated deny membership of a union, its lists of members will be modified proportionately. For example, if on checking the records, it is found that a union has 2,000 valid members and the rival union objects to, say, 800, of these members, a 15 per cent, sample of the later has to be drawn i.e. 120 persons have to be interrogated personally. If on personal interrogation it is found that 30 of the 120 persons (i.e. 25 per cent) deny membership of the union, the strength of the union will be reduced by 25 per cent of 800 persons whose membership was objected to i.e. by 200. In other words, the final strength would have to be done in such manner that it is fully representative of the members. Thus, a 20 per cent, random sample means that every 5th name in the list is to be selected. It is, however, not necessary that in all cases the selection should begin from the 5th name in the list, the first sample may be either the 1st name in the list, or the second, or the third, or the fourth, or the fifth name. Thus, for example, if the first name is selected as the first sample, then subsequent samples will be 6th, 11th, 16th etc., names: if, however, the second name is taken as the first sample, the subsequent sample would be 7th, 12th, 19th etc., names in the list, of the union will in this case; be 1,800. If the persons who on interrogation deny their membership of the union claiming them as their members inform the Verification Officer that they are members of a rival union, the Verification Officer will check their membership with the list of members and records of that union and adjust its list accordingly i.e. their names will be added to the list of the rival union and excluded in the manner mentioned above, from the list of the claimant union. (9) While conducting personal verification as mentioned in para (7) above, the Verification Officer will not allow the representatives of any union or management to be present. (10) The Verification Officer will report his finding, to the Central/State Implementation Machinery which in turn will communicate its decision to the Management as well as to the unions.” and submitted that a perusal of the above would make it clear that they are nothing but guidelines, issued to the Verifying Officer, and nothing more and nothing less. Such non-statutory and general instructions cannot be enforced under Article 226 of the Constitution of India. Therefore, the writ petition itself is liable to be dismissed in limini. Whereas, in this regard, the learned counsel appearing for petitioners has contended that restraining the Badli Workers from participating in the verification process as members of a recognized registered Trade Union itself amounts to ‘Unfair Labour Practice’ and drawn the attention of the Court to 5th Schedule of Industrial Disputes Act, 1947, which reads as under: “Unfair Labour Practices I. On the part of employers and trade unions of employers-- 1. To interfere with, restrain from, or coerce, workmen in the exercise of the 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 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 its members, where such a trade union is not a recognised trade union.” I am of the view that this