THE HON’BLE MR JUSTICE L. NARASIMHA REDDY WRIT PETITION No.19251 of 2009 ORDER: The Naval Dockyard at Visakhapatnam has two categories of persons who render service. The first category is the industrial workers and the other is the civilian employees. The petitioner is one of the trade unions of the Naval civilian employees. It was also recognized by the management. The Industrial Disputes Act, 1947 (for short ‘the Act’) provides for appointment of Works Committee (for short ‘the Committee’), that would comprise of members of the workmen and members of the management, almost in equal number. The procedure for formation of Works Committee is prescribed in part VII of the Industrial Disputes (Central) Rules, 1957 (for short ‘the Rules’). As required under Rule 41 of the Rules, the petitioner and other unions were requested to furnish the particulars of their membership through letter, dated 06.08.2009. In response to the same, the petitioner submitted a reply dated, 31.08.2009, stating that its membership is 3395. Its members are distributed among the various sections, shops and departments of Naval Dockyard. Similar particulars were furnished by the other unions also. The fourth respondent i.e., Chairman and Returning Officer of the Election Committee of the Dockyard issued proceedings, dated 07.09.2009, declaring the election programme and dividing the electorate into ten constituencies. According to the programme, the process was to commence on 22.09.2009 and end on 08.10.2009. This writ petition is filed challenging the action of the respondents in proposing to conduct elections. The grievance of the petitioner is that the facts of the case do not allow the division of electorate into ten constituencies, as proposed. The petitioner contends that its membership is 50% of the total strength of the workmen and as per Rule 42 of the Rules, division into constituencies becomes permissible only when a particular union does not have more than half of the workmen as its members. It is also urged that in case there is any doubt as to the membership of the petitioner, the only course open to the respondents is to seek adjudication of the same before the Assistant Commissioner of Labour (for short ‘the Commissioner’) as provided for under Rule 42 of the Rules. It is further urged that the division into electoral constituencies under Rule 43 of the Rules can be done only where the division contemplated under Rule 42 is permissible. On behalf of the respondents, a counter-affidavit is filed. It is stated that the Naval Dockyard, Visakhapatnam has a workforce of about 6000 industrial workers and there are two registered trade unions for them including the petitioner. Another unregistered union is also said to be existing. According to the respondents, the membership of the petitioner union was not renewed after 2007-2008 and no subscription towards membership was recovered from the wages of the workers. The necessity to refer the matter to the Commissioner would arise if only there is any dispute as to the actual membership. The respondents further contended that the elections are being held strictly in accordance with the relevant provisions of law in the interests of the workmen and that the petitioner cannot be permitted to stall the same. Sri P.B.Vijaya Kumar, learned counsel for the petitioner, submits that constitution of the Committee is an important step intended for the welfare of workmen and that the Government framed the Rules, touching on the subject covering various aspects. Learned Counsel further submits that the petitioner has not only mentioned the percentage of the total workmen as its members, but also furnished the list of names and if there exists any doubt as to the accuracy of the particulars, the only alternative is to refer the matter for decision to the Commissioner. The learned counsel also submits that the division of the electorate into various constituencies, as provided for under Rule 43 of the Rules, would become permissible, if only a major classification thereof into union members and non-members can be made under Rule 42 of the Rules and in the instant case, the division under Rule 42 of the Rules itself is not tenable. He places reliance upon the Judgment of the Supreme Court reported in Union of India Vs. M.T.S.S.D. Workers Union[1]. Sri M.Ratna Reddy, learned Standing Counsel for respondents 1 to 4, on the other hand, submits that the petitioner, no doubt, is a registered union, but its membership is far below 50%. He contends that had the petitioner furnished the particulars of the workmen, whose membership is renewed and subscriptions are deducted up to the date either it would have been taken on its face value or reference could have been made under Rule 41 to the Commissioner. He further submits that the proposed election is strictly in accordance with the relevant provisions of law. Respondents 5 and 6 filed a counter-affidavit almost on the same lines. As mentioned at the threshold, the Naval Dockyard has two categories of persons that do the work in it. The first category is industrial workers and the second category is civilian employees. Their service conditions are different. Obviously for that reason, separate trade unions exist for each category of the employees. Works Committee, in an industrial establishment is conferred the status of an authority under Section 3 of the Act. The Committee comprises of representatives of the employers and the workmen. The members of the workmen, who are in the Committee, are to be elected. The procedure for constitution of the Committee and in particular the conducting of the elections of the rolls of the workmen are provided for in part VII of the Rules comprising of Rules 38 to 57. While election of members of the Committee is a requirement, certain alternatives are provided as regards the manner in which it must be conducted. In case the membership of a registered union exceeds 50% of the workmen, the members have to be elected without any division into groups. Where, however, the membership is less than 50%, Rule 42 of the Rules mandates that the workmen shall be divided into two groups namely, those who are members of the registered trade unions and those who are not. Members to be elected shall be proportionately divided in the two groups, known as constituencies. Rule 43 of the Rules directs that wherever the division of the workmen into two groups or constituencies becomes necessary, under Rule 42, a further division thereof into sections, shops, departments, etc. can also be made, if the employer so thinks. There is no controversy about the scope of Rules 42 and 43 of the Rules. In fact, in the judgment referred to above, the Supreme Court made the law on this aspect, very clear. It was held that the sub-division of the electorate into sections, shops and departments under Rule 43 of the Rules would be possible, if only division of the workmen into two groups namely, those who are members of the registered trade unions and those who are not, is made under Rule 42. The entire controversy in this case turns around the quantum of membership on the rolls of the petitioner and its percentage, vis-à-vis total workforce of the particular category. If it emerges that the petitioner has on its rolls, more than 50% of the workmen of that category, division into constituencies under Rule 42 of the Rules, much less the further spilt thereof, under Rule 43 becomes untenable. The petitioner made a claim to the effect that the members on its rolls are 3395 as against the total workers of 5200. Names of all the workers said to be on their rolls, were also furnished. In this context, Rule 41 of the Rules becomes relevant. It reads as under: Rule 41.Consultation with trade unions:- (1) Where any workmen of an establishment are members of a registered trade union the employer, shall ask the union to inform him in writing- (a) how many of the workmen are members of the union; and (b) how their membership is distributed among the sections, shops or departments of the establishment. (2) Where an employer has reason to believe that the information furnished to him under sub-rule (1) by any trade union is false, he may after informing the union, refer the matter to the Assistant Labour Commissioner (Central), concerned for his decision; and the Assistant Labour Commissioner (Central), after hearing the parties, shall decide the matter and his decision shall be final.” From a perusal of this Rule, it becomes clear that reference to the Commissioner has to be made, when the employer has “reason to believe that the information furnished to him by the trade union is false”. Every doubt expressed by the employer need not necessarily entail in a reference. If a mere perusal of the list furnished by a trade union enables an employer to form a definite opinion, he can certainly act accordingly. Since the reference to the Commissioner would have the effect of postponing the election, recourse that must be had, only when it is otherwise necessary and mandatory. The particulars furnished by a trade union would have the impact, only upon the necessity to divide the representatives of the Committee into two groups under Rule 42 of the Rules and electoral constituencies under Rule 43. Whether the elections are to be held for the representatives of the Committee in one lot or in two groups or in further sub-divisions, every worker, irrespective of his association with a trade union, would have a right to vote. The only difference would be that such of the workmen, who are not members of a registered union, would have a right to elect the representatives from among themselves to be in the Committee, if the division takes place under Rules 42 and/or 43 of the Rules. The membership of a trade union has its own importance and significance. Though a trade union can be registered with seven members, its continued functional existence becomes possible, if only it has not less than 10% of the workmen of an industrial establishment or hundred workmen, whichever is less. Section 9-A of the Act was introduced by the Parliament in the year 2002 making this obligatory. When such is the importance accorded to the membership, it is but natural that it must be a valid one and up to the date. It is important to note that membership in trade unions is not constant and keeps on changing from year to year, depending upon several factors. There is no concept of life membership, or the one for entire tenure. A workman can seek membership of the union by making application and paying subscription. He is equally at liberty to cease to be a member and join another, or remain unassociated. For this purpose, he does not have to either send resignation or initiate proceedings. Stoppage of payment of subscription would naturally lead to cessation of the member concerned to be on the rolls for the concerned period. With a view to facilitate the regular payment of subscription, a procedure is evolved, wherein the amount of subscription can be deducted from the salary of the workman concerned. The internal arrangements in various establishments are such that the deduction of subscription from the salary is the only valid and recognized mode. A specific averment is made by respondents 1 to 4, to the effect that the petitioner did not renew its membership of the workmen after 2007-2008 and that deductions of subscriptions were discontinued. No reply affidavit is filed denying this averment. Mere fact that the petitioner had on its rolls, the majority of members at one point of time, cannot be the basis for the petitioner, much less, would lead to an obligation on the part of the employer, to make a reference under Rule 41 of the Rules. It is only the workmen that are on the active and latest rolls of the petitioner, evidenced by deduction of subscription, that can be taken into account, before a decision is taken whether to make reference under Rule 41. If the interpretation placed by the petitioner on Rule 41 of the Rules is to be accepted, every claim even if made with the sole object of stalling the election process must be referred to the Commissioner. Take the case, a trade union that was registered with seven members and made a claim that it has 50% of the workmen, as its members, with hardly any evidence as to payment of subscription. If the matter is to be referred to the Commissioner for decision, which naturally would take months, if not years, depending on the hierarchy of remedies, the Committee cannot be constituted for such time. On the other hand, if the claim is genuine, the employer cannot brush it aside on the ground that it is not satisfied about the claim made by a trade union. Neither of the two extremes can be readily resorted to. Much would depend upon the claim made by a trade union on the one hand and the manner in which the discretion is exercised by the employer, on the other. In the instant case, the petitioner does not dispute that it did not renew its membership from the year 2007-2008 and that no official deductions of subscriptions from the salaries of its erstwhile members were made for the past few years. The judgment referred to supra is not an authority for the proposition that irrespective of the nature of dispute, it must be referred to the Commissioner under Rule 41 of the Rules. There is no specific denial of the petitioner union not having 50% of the workmen of the industrial undertaking, on its current rolls. Therefore, the writ petition is dismissed. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY,J Dt:02.03.2010. Note: L.R. copy to be marked. (B/o) kdl [1] AIR 1988 S.C. 633