IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.19426 of 2011 and M.P.No.1 of 2011 Shanmugam General Secretary, Labour Progressive Federation, having office at No.10/25,Thyegaraya Street, North Usman Road, T.Nagar, Chennai-17. .. Petitioner Vs. 1.The Government of Tamil Nadu rep by its Principal Secretary, Transport Department, Fort St. George, Chennai-600 009. 2.State Express Transport Corporation Ltd., rep by its Managing Director, near Pallavan Transport House, Pallavan Salai, Chennai-600 002. 3.Metropolitan Transport Corporation Ltd., rep by its Managing Director, 'Pallavan Illam', Pallavan Salai, Chennai-600 002. 4.Tamil Nadu State Transport Corporation (Villupuram) Limited rep by its Managing Director, Post Box No.56, 3/137,Salamedu Villupuram-605 602. 5.Tamil Nadu State Transport Corporation (Kumbakonam) Limited, rep by its Managing Director, Railway Station Road, Kumbakonam-612 001. https://hcservices.ecourts.gov.in/hcservices/ 6.Tamil Nadu State Transport Corporation (Madurai) Limited, rep by its Managing Director, Bye-pass Road, Ellis Nagar, Madurai-625 010. 7.Tamil Nadu State Transport Corporation (Tirunelveli) Limited, rep by its Managing Director, Trivandrum Road, Vannarapettai, Tirunelveli-627 003. 8.Tamil Nadu State Transport Corporation (Coimbatore) Limited, rep by its Managing Director, 37,Mettupalayam Road, Coimbatore-641 043 9.Tamil Nadu State Transport Corporation (Salem) Limited, rep by its Managing Director, No.12,Ramakrishna Street, Salem-636 007. 10.Agitator Ambedkar Labour Liberation Front, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 11.Anna Tholir Sanga Peravai (ATP), Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 12.Indian National Transport Workers Federation, (INTUC), Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 13.Nethaji Pokkuvarathu Tholilarkal Pathukappu Tholil Sangam, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/ 14.Pattali Thozir Sanga Peravai, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 15.Tamilaga Pokkuvarathu Tholilargal Padukappu Sangam, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 16.Tamil Nadu Government Transport Corporation Staff Federation (TTSF) Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 17.Tamilnadu Salai Pokkuvarathu Thozhilalar HMS Peravai Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 18.Tamil Nadu State Transport Corporation Diploma Technical Employees Federation, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 19.Tamil Nadu State Transport Corporation Employees Federation (AITUC) Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. 20.Tamil Nadu State Transport Corporation Employees Federation (CITU), Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/ 21.Tamil Nadu State Transport Corporation Graduate and General Workers Welfare Union, Metropolitan Transport Corporation, 'Kalaiarangam' Pallavan House, Pallavan Salai, Chennai-600 002. (RR10 to 21 impleaded as per order dt.8.9.2011 in M.P.No.2 of 2011) .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents herein not to entertain any trade unions except the Labour Progressive Federation for the duration of its recognition with respect to the grievances of the workers of the respondents/transport corporations with regard to their service conditions. For Petitioner : Mr.V.Prakash, Senior counsel, for Mr.K.Sudalaikannu For Respondents : Mr.S.Rajeswaran, Spl.G.P. For R-1 Mr.V.R.Kamalanathan for RR2 to 9 Mr.R.Yashod Varadhan, Senior counsel for Mr.S.Muthuraj and S.Babu for R-11 Ms.Ramapriya Gopalakrishnan for R-16 Mr.S.Arunachalam Associates for R-19 Mr.R.Y.George Williams for R-13 Mr.V.Ajoy Khose for R-20 ORDER This writ petition is filed by the General Secretary of Labour Progressive Federation. The prayer in the writ petition is for a direction to the respondent State and the various State Transport corporations aligned as respondents 2 to 9 not to entertain any trade unions except the Labour Progressive Federations for the duration of its recognition with respect to the grievances of the workers of the respondents / transport corporations in relation to service conditions. 2.When the matter came up on 22.8.2011, this court directed the learned Special Government Pleader to take notice for the first respondent and notice was directed to serve on the other transport corporations. Though connected matter, i.e., W.P.No.12609 of 2011 filed by the same petitioner for the prayer not to withdraw or deprive the role of the petitioner union and its privileges and the existing practices and not to promote the present 11th respondent, i.e.,Anna Tholir Sanga Peravai and its affiliates in the matter of duties and preparation of roaster for running crew and running technical and clerical cadres. It was reported that the said matter is pending before the another learned Judge. Therefore, it could not be tagged along with this writ petition. But, when this court found that the petitioner was seeking a direction against third party trade unions, it had observed that in the absence of those https://hcservices.ecourts.gov.in/hcservices/ unions before this court, the present writ petition cannot be adjudicated. 3.Mr.V.Prakash, learned Senior Counsel appearing for the petitioner assured that he will instruct his junior counsel to implead all parties. Accordingly, M.P.No.2 of 2011 was filed to implead respondents 10 to 21, which are registered trade unions functioning in various State owned Transport Corporations. That M.P was ordered on 8.9.2011 with a direction to give private notice to those unions. Accordingly, while some of the served unions were represented by their counsels, there are other unions have not appeared either in person or through their union. 4.Heard the arguments of Mr.V.Prakash, learned Senior Counsel leading Mr.K.Sudalaikannu, learned counsel appearing for the petitioner, Mr.S.Rajeswaran, learned Special Government Pleader for first respondent, Mr.V.R.Kamalanathan, learned Standing Counsel for respondents 2 to 9, Mr.R.Yashod Varadhan, learned Senior Counsel leading Mr.S.Muthuraj, learned counsel for 11th respondent, Ms.Ramapriya Gopalakrishnan for 16th respondent, Mr.S.Arunachalam, learned counsel for 19th respondent, Mr.V.Ajoy Khose, learned counsel for 20th respondent and Mr.R.Y.George Williams, learned counsel for 13th respondent. 5.It is the stand of the petitioner that he is the General Secretary of the Labour Progressive Federation, which is the largest following among workers working in the Transport Corporations. It has been representing workers in various negotiations both bilateral and tripartite forums. During the wage negotiations that was held during the year 1993 when one of the union which was not invited for negotiations before the then Labour minister, it had filed a writ petition in W.P.No.13717 of 1993. Finally a division bench of this court ordered election to be conducted to find out the representative character of each trade union through secret ballot under the supervision of a retired judge of this court. Thereafter, a State-wide poll was conducted among transport workers. Four unions were elected to represent the employees in the wage settlement that was pending. Based upon the representative character of those four unions, they had signed a settlement with the transport corporation on 1.9.1998 for a period of three years. That settlement came to an end on 31.8.2001. Thereafter, a fresh negotiations were conducted, but the practice adopted was not followed by the Corporation. One trade union by name Tamil Nadu Government Transport Corporations Staff Federation with registration No.601/MDU filed a writ petition before this court being W.P.No.40284 of 2006. In that writ petition, they had sought to challenge an order dated 24.7.2002 issued by the Chairman of the State Transport Corporation. By the said order, the request of that union to invite them for negotiations on exclusive basis and on the basis of last election was rejected. It was stated that several writ petitions filed by the other trade unions are pending. As against the rejection order dated 19.4.2005, a writ appeal was filed by the union in W.A.No.1425 of 2006. In that writ appeal, this court gave direction after holding that the transport https://hcservices.ecourts.gov.in/hcservices/ corporation should strictly adhere to the directions given by the Supreme Court in Food Corporation of India Staff Union Vs. Food Corporation of India and others reported in 1995 Supp (1) SCC 678. The division bench while doing so disagreed with the judgment of an earlier division bench in W.A.Nos.502 and 503 of 2005, dated 11.12.2007 (The General Secretary, N.L.C. Labour and Staff Union and others Vs. NLC United Workers Union and others). The observations made in the decision of the division bench as found in paras 5 to 8 may be reproduced below: "5.The learned single Judge has rejected the said plea of the petitioners. In the common order, at para No.16, the learned single Judge has held that 'the petitioners, however, assert that they have the exclusive right to be called for the talks unless and until a secret ballot is held. The source to which they trace their so called right is not to any statute nor a law laid down by the Supreme Court, but only to the judgment of the Supreme Court in the Food Corporation of India case which, as stated earlier, are consensual judgments.' 6.But, the question on hand is no more res integra, in view of a Division Bench judgment of this Court, headed by one of us (Elipe Dharmarao, J.) in T.N.Civil Supplies Corporation Pirivu Anna Thozhir Sangam Vs. T.N.Civil Supplies Corporation Employees Union and others [2009 CIJ 1017 MAD], wherein, dealing with a similar situation and negativing the similar observation made by the First Bench of this Court in W.A.Nos.502 and 503 of 2005 etc. batch, dated 11.12.2007 (The General Secretary, N.L.C. Labour and Staff Union and others Vs. NLC United Workers Union and others) as that of the learned single Judge in the order impugned in this writ appeal, it has been held as follows in para No.14: "The First Bench of this Court has proceeded on the wrong premise that since the above guidelines wee issued by the Honourable Apex Court by consent, they will not have any binding effect to the facts of the case before it, ignoring the well established legal principle that even if the decision has been rendered by the Honourable Apex Court by consent, if the Honourable Apex Court lays down general principles of law in the matter, the same will bind every person including those who are not parties to that order." 7.And in Para No.12, after extracting the guidelines issued by the Honourable Apex Court in the above referred FCI case, it has been observed as follows: "Thus, it is seen that though the Food Corporation of India and the Unions representing the workmen have agreed to follow the "Secret ballot system", the guidelines, totalling 19, https://hcservices.ecourts.gov.in/hcservices/ have been framed by the Honourable Apex Court after issuing notice to all the major All India Trade Unions, not by consent, but by considering Memorandum No.25 of 1980, dated 18.12.1980 issued by the Office of the Chief Labour Commissioner, Ministry of Labour, Government of India, wherein a detailed procedure has been prescribed and further taking into consideration the Scheme prepared by the appellant therein for assessment of representative character of the trade unions through secret ballot system and after hearing all the parties concerned. . ." 8.This earlier judgment of the Division Bench of this Court, holding that the Honourable Apex Court issued guidelines in FCI case and they being the general principles of law in the matter, the same will bind every person including those who are not parties to that order, squarely applies to the facts of the present case also. In view of the above, the order of the learned single Judge suffers a legal debacle and the same, accordingly, needs to be set aside." 6.Even after the final disposal of the writ appeal by an order dated 21.9.2010, a miscellaneous application was taken out by the same trade union in M.P.No.2 of 2010 in the said writ appeal. In that application, the same division bench had directed the conduct of secret ballot once again by the same retired judge (who had conducted previous election) on the basis of an election schedule submitted by the parties. In the meanwhile, 11th respondent Anna Tholir Sanga Peravai filed a special leave petition as against the order passed by this court in the writ appeal dated 21.9.2010. That unnumbered SLP (CC 16146 of 2010) was directed to be tagged along with the earlier batch of cases pending in SLP(C)Nos.17195 and 17196 of 2009 vide order dated 29.10.2010 by the Supreme Court. The Supreme Court while tagging the SLP along with the earlier SLPs, gave the following directions and it reads as follows: "The elections, which are scheduled to be held in terms of the impugned order of the High Court, may be held and the results thereof will abide by the result of the Special Leave Petition." 7.Pursuant to the directions given by the division bench, an election notification was issued on 8.10.2010 stating that elections are held with regard to the conduct of secret ballot to elect the eligible trade union to take part in the negotiations for wage revision for the workers in the seven transport corporations of Tamil Nadu. The present petitioner trade union, i.e. LPF filed an another writ petition being W.P.No.25417 of 2010 taking exception to the fact that the election was held only to participate in the negotiations for wage revision. On the contrary, according to the said trade union, election is for negotiations for all purposes. Since the said issue cannot be raised before the election officer, the W.P. was taken up by the same division bench https://hcservices.ecourts.gov.in/hcservices/ in W.P.No.25417 of 2010. The division bench held that the notification, dated 08.10.2010 for holding elections is for electing trade unions to take part in the negotiations for all purposes. This order was passed as an interim order and that the writ petition was directed to be posted thereafter. In the meanwhile, elections were held under the supervision of a retired judge of this court. The present petitioner's trade union had secured 57.31% and got the highest number of votes which was 73,450 out of 1,28,173 votes polled. 8.Based on the election results and pursuant to the interim direction given by this court, the first respondent State Government had issued a consequential G.O in G.O.Ms.No.359, Transport Department, dated 08.12.2010. In that order in paragraphs 3 and 4, it was stated as follows: "3.The Election Officer declared the result of the secret ballot on 28.11.2010 by stating that the Labour Progressive Federation (LPF) has secured 73,450 votes out of 1,28,173 votes polled, which comes to 57.31% and got elected, but however in view of the order dated 29.10.2010 of Supreme Court of India in SLP C.C.No.16146/2010, Election Officer has observed that the above said declaration will abide by the result of the order of the Supreme Court. 4.Based on the declaration of the result by the Election Officer and in view of having secured the highest number of votes i.e., 73,450 votes out of 1,28,713 votes polled which comes to 57.31% in the process of secret ballot, the Labour Progressive Federation has requested the Government in the reference 7th read above to issue orders recognizing it as a sole bargaining agent. The Government have carefully examined the above request and the other related Court orders in this connection and have decided to accord recognition to the Labor Progressie Federation, 10/25, Thiyagarajar Street, North Usman Road, T.Nagar, Chennai-600 017 to take part in negotiation for all purposes with regard to the State Transport Undertakings of Tamil Nadu from 28.11.2010. The above recognition will abide by the result of the Special Leave Petition C.C.No.16146/2010 pending before Hon'ble Supreme Court of India." (Emphasis added) 9.Subsequent to the said G.O., after the general elections were held i Tamil Nadu, a new political party came to power with effect from 13.5.2011. The petitioner union had complained to the firs respondent vide its complaint letter dated 15.5.2011 stating that the transport corporations are indulging in an unfair labour practice and mass transfers are taking place of persons who are owing allegiance to the petitioner trade union which is in turn affiliated to the then ruling party Dravida Munnetra Kazhagam (DMK) and that too the work done by them were taken over by the unrecognised trade union, i.e., 11th respondent. Therefore, they had requested the status quo ante to be restored which was prevailing https://hcservices.ecourts.gov.in/hcservices/ on the date of the Government order in G.O.Ms.No.359, Transport Department, dated 08.12.2010. The petitioner trade union also filed another writ petition before this court being W.P.No.12577 of 2011 seeking for a direction to the respondents to take an appropriate action on the petitioner's complaint dated 15.5.2011 and to ensure that the allotment of premises to the trade union affiliated to the petitioner should not be disturbed or interfered with by the 11th respondent herein. When that mater came up during the summer vacation court, the vacation judge by an order dated 20.5.2011 recorded as follows: "I have heard the learned Senior Counsel representing the petitioner, learned counsel appearing for respondents 1 to 11 and the learned counsel for the 12th respondent. 2.On instructions, the learned counsel appearing for the 12th respondent would submit that their members would not interfere in the functioning of the petitioner's union and they would not disturb them or their premises in which they are in occupation. His statement is recorded. 3.Learned counsel for the respondents 1 to 11 would submit that they would provide necessary protection for the petitioner in the event of any untoward incident happening in the premises. This statement is also recorded." 10.The main writ petition was directed to be posted after vacation. Thereafter, a third writ petition was filed by the same petitioner in the name of his trade union, i.e. W.P.No.12609 of 2011 seeking for a direction to the respondent State and the other transport corporations including the 11th respondent not to withdraw or interfere or deprive in any manner in the role of the recognised union, i.e., LPF and its privileges and existing practices and in particular not to promote or permit any role or privileges to the unrecognised 10th respondent and its affiliates including in the matter of allotment of duties and preparation of roaster for drivers, conductors, maintenance, technical, supervisory, clerical workers and the workers in the administrative wing. Pending the writ petition, the sought for an interim injunction. The present 11th respondent was shown as 10th respondent in that writ petition. The counsel for the said respondent had appeared before this court. This court had disposed of the interim application by passing the following order and directed the main matter to be listed on 15.6.2011 which reads as follows: "2.Learned counsel for the 10th respondent has also given an undertaking to the effect that the 10th respondent shall not interfere in the administration of the Transport Corporation to be carried on by the respondents 1 to 9. The learned counsel for the respondents 1 to 9 has also submited that the administration shall be carried on in accordance with the service conditions. Post the Writ Petition on 15.06.2011. In the meanwhile, the respondents 1 to 10 https://hcservices.ecourts.gov.in/hcservices/ are directed to file counter. The undertaking given by the 10th respondent s recorded by this Court." 11.Subsequent to the said order, the counsel appearing for the present petitioner sent a legal notice on 11.8.2011. In that notice given to the first and third respondents, the counsel had warned the respondents as follows: "1....We are given to understand that yourselves have called for the meeting of all the unions for discussion on service conditions and related issues today at 11.00 A.M. The said meeting if so convened is in gross violation of the orders of the High Court apart from being an Unfair Labour Practice. If the meeting proceeds, be assured that our client Federation Viz., Labour Progressive Federation will have no other alternative but to institute an application for contempt bringing your willful disobedience to the notice of the High Court." 12.After sending such a legal notice, the present writ petition came to be filed as noted already. However, in this writ petition, the petitioner, who was the General Secretary of the LPF and who was also deponent to the affidavit in the earlier W.P.No.12609 of 2011 did not refer to the fact of filing the earlier two writ petitions. The fact that the petitioner has filed two earlier writ petitions, i.e., W.P.Nos.12577 and 12609 of 2011 before this court with more or less similar relief and did not choose to refer to the same in the present writ affidavit is clearly an abuse of the process of the court. 13.Merely because the interim orders passed in those writ petitions were included in the typed set of papers in this writ petition will not absolve them of not referring to the same in the affidavit sworn to by him in support of the writ petition. Having raised an identical issue in W.P.No.12609 of 2011, it was also not open to them to file a second writ petition especially when the earlier writ petition is still pending. Hence the writ petition is liable to be dismissed on the short ground. Mr.R.Yashod Varadhan, learned Senior Counsel appearing for the 11th respondent raised an objection on this issue. But, since substantial issues were raised by the petitioner, the court did not want to dismiss the writ petition on a technical ground and heard the parties on the merits of the writ petition. 14.Mr.V.Prakash, learned Senior counsel appearing for Mr.K.Sudalaikannu, had stated that since the secret ballot was conducted and the petitioner union had secured 57.31% votes and subsequently, by a Government Order, it was recognized as a sole bargaining agent, there is no option to the respondents except to deal with the petitioner's trade union alone and they cannot deal with any minority union. Otherwise, it will negate the purpose of recognition granted to the petitioner. Therefore, the respondents calling upon meeting of all trade unions on 11.8.2011 was illegal and that the petitioner union had sent a protest letter. It was https://hcservices.ecourts.gov.in/hcservices/ contended that in order to avoid multiplicity of trade unions, a single majority union is recognised as a sole bargaining agent. Any attempt by the respondents transport corporations to deal with the other unions would amount to an unfair labour practice which is prohibited under V Schedule to the Industrial Disputes Act. Item No.2 Part I of V Schedule read with Section 2(ra) clearly stipulates that any dominance or interference or support to any trade union including employer taking active interest in organising trade union of its own workmen or showing potential in favour of one of several trade unions and if such trade union s not a recognized trade union, it is an unfair labour practice. 15.In the light of the above contentions, the learned Senior counsel had referred to a judgment of the Supreme Court in Balmer Lawrie Workers' Union v. Balmer Lawrie & Co. Ltd., reported in 1984 Supp SCC 663 and he referred to the following passage found in paragraph 12 which reads as follows: "12....What is of importance to us is that everyone was agreed that when there are multiple union in an industrial undertaking or an industry, the union having the largest membership of the workmen must be clothed with the status of recognised union and consequently as the sole bargaining agent. The underlying assumption was that the recognised union represents all the workmen in industrial undertaking or in the industry." In view of the above judgment, the learned Senior counsel submitted that once there is sole bargaining agent, then the union represents all the workmen in industrial undertaking or in the industry. 16.The learned Senior counsel further referred to a judgment of the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India reported in 1995 Supp (1) SCC 678 and referred to the following passage found in paragraph 1 which reads as follows: "1.Collective bargaining is the principal raison d'être of the trade unions. However, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishment, the trade union is first required to get itself registered under the provisions of Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body; the names and occupation of whose office-bearers also become known. But when in an establishment, be