IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12676 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ONGC MAZDOOR SANGH Versus ONGC LTD. -------------------------------------------------------------- Appearance: MR AK CLERK for the Petitioner. MR RAJNI H MEHTA for Respondents No. 1-2 MR MUKUL SINHA for Respondents No. 3,5 MRS KETTY A MEHTA for Respondent No. 4 MR MUKESH R SHAH for Respondent No. 6 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 10/12/2001 C.A.V. JUDGEMENT 1. By filing this petition, the petitioner-Union, has prayed for necessary direction against respondents 1 and 2 for carrying out the verification of the members of the Unions for the purpose of determining the membership of the concerned Unions. The petitioner has also prayed that the Chief Labour Commissioner (Central), respondent No.6 herein, be directed to conduct fresh verification process through secret ballot for verifying the membership of the petitioner and respondent Nos. 3 to 5 Unions. 2. The petitioner is a Trade Union registered under the provisions of the Trade Unions Act. As per the averments made in paragraph 1 of the petition, the members of the petitioner-Union are spread over the entire region, i.e. Ankleshwar, Vadodara, Khambhat, Ahmedabad and Mehsana and that the strength of the workers in Ahmedabad is 1500 and out of that, 1000 workers are the members of the petitioner-Union. It is also further averred in the said petition that in Ankleshwar, there are 1700 workers, out of which 1200 workers are members of the petitioner-Union. So far as Vadodara is concerned, there are 350 workers, out of which 100 workers are members of the petitioner-Union and in Mehsana, there are 1500 workers, out of which 700 workers are members of the petitioner-Union. It is further averred in the petition that so far as respondents 3, 4 and 5 are concerned, they are also Trade Unions and the ONGC has given recognition to them. The respondent No.1-ONGC is giving certain benefits to the Unions recognised by it, such as inviting the representatives of such recognised Unions in the matter of taking policy decisions, providing facilities of transportation, office, installation of telephones, giving telephone facility at the residences of the office bearers of the Union, etc. and it seems that some privileges are given to the office bearers of such recognised Union. It is averred in paragraph 3 of the petition that even though the petitioner-Union has requested the ONGC to give recognition to it, the same was not given and the office bearers of the petitioner-Union are not called for any negotiations while taking policy decision nor have they given any such facilities, which are given to the Office Bearers of the recognised Unions. 3. The grievance of the petitioner-Union is that even though the petitioner-Union is having larger membership and even though the three respondent-Unions are actually in minority, they are still enjoying the status of recognised Unions at the hands of ONGC. The say of the petitioner-Union is that the process of verification of the membership of the Union had not taken place since long and lastly, the said verification was carried out as back as in the year 1978. If proper verification is carried out, the petitioner-Union can prove the strength of its members. It is also averred in the petition that the ONGC is deliberately sheltering the minority Unions in taking policy decision concerning the service conditions of the workmen and the consultation is made only with the Office Bearers of the aforesaid Unions, even though the petitioner-Union is having more membership as compared to the aforeaid minority Unions. It is also the say of the petitioner that if any proper verification is carried out, the fact about the membership will become clear. It is also the say of the petitioner-Union that the petitioner is having sufficient membership to get recognition as per the policy of the ONGC. In paragraph 12 of the petition, it is averred that the ONGC did not want the presence of the petitioner-Union in deciding the policy matters, and, therefore, in spite of the fact that the petitioner-Union is fulfilling the conditions laid down in the policy for recognition, the same was not granted to the petitioner-Union. The above-said action on the part of the ONGC in not verifying the membership since last 23 years is arbitrary and contrary to the provisions of Article 14 of the Constitution of India. On these and such other averments, therefore, the present Special Civil Application is filed by the petitioner-Union, challenging the action of the ONGC in not carrying out the verification to find out the membership of the concerned Unions. Along with the petition, the petitioner has also annexed Code of Discipline containing procedure for verification of membership of unions for recognition by the ONGC. 4. The aforesaid petition is opposed by the respondents. So far as respondent No.2 is concerned, affidavit-in-reply is filed by one Mr.P.K. Das, Manager (I.R.) (Industrial Relation) with the Oil and Natural Gas Corporation Limited at the Regional Office, Vadodara. So far as respondent No.3 is concerned, affidavit-in-reply has been filed by one Bharat S. Khedawala, President of the respondent No.3-Association, by which the said Special Civil Application has been resisted by the said Union. Respondent No.5 has also filed a reply through one I.V. Tulsidharan, Vice President of the said Union. Therafter also, there are further affidavits filed by respondent No.2 as well as respondent No.5. 5. On behalf of respondent Nos. 1 and 2, Mr.R.H.Mehta, learned Advocate, has appeared and he has relied upon the affidavit-in-reply filed by one Mr. P.K. Das. It has been pointed out in the said reply that the ONGC recognised the Employees' Mazdoor Sabha, respondent No.4 for the region as a whole, excluding ONGC Ahmedabad and Ankleshwar Projects, and the ONGC Employees' Union and ONGC Employees' Association (respondent No.3) are recognised at the Project Level at Ahmedabad and Ankleshwar, respectively. It is also stated in the said reply that the O.N.G.C. invites recognised Unions for taking decisions in policy matters in respect of matters connected with unionised categories of employees and such Unions are also provided with office accommodation, telephone, etc., for day-to-day functions to maintain liaison with the management and industrial peace in the organisation. It is further stated in the said reply that there was a conflict in the past regarding recognition of the Union and that the matter in this connection is pending in this court, being Civil Application No.484 of 1992 in First Appeal No.1771 of 1992, arising from civil Suit No.2 of 1978 and that the said matter is still pending before this Court. It is denied that ONGC is sheltering the existing recognised Unions. It is also stated that the ONGC cannot interfere with the verification issue and the petitioner has approached the appropriate Authority, i.e. the Chief Labour Commissioner (Central), New Delhi for verification. It is also stated in the reply that there are number of registered Unions in the Region and it is not possible to discuss with all the registered Unions on policy matters, and hence, the petitioner-Union cannot be given the opportunity for discussion as they are not recognised. It is also stated in the reply, more particularly in Paragraph 13 of the reply that the activities of the ONGC are spread all over India and accordingly, there are number of recognised Unions in different work centres and that any policy decision is arrived at after due discussion with the recognised Unions only. It is also stated that long term settlement has been arrived at after discussion with the recognised Unions of ONGC, including the recognised Unions of WOBU. On these and such other averments, the present petition has been resisted on behalf of the ONGC. 6. On behalf of respondent No.3-Union also, reply has been filed, as stated earlier, and the petition is resisted on various grounds. It is stated in the said reply that the ONGC has its own policy for recognition of the Trade Unions under the Code of Discipline and that as per that policy recognition on Regional basis has been given very wide and prime importance. It is stated that respondent No.5, ONGC Employees' Union, has got the majority in Mehsana Project and, thereafter, verification of the membership has taken place. Therafter, court proceedings against the same were initiated and, ultimately, there was a stay against recognition of the ONGC Employees' Union in the Mehsana Project. It is stated that, in view of the stay order granted by the Court, no further recognition can be granted so far as Mehsana Project is concerned. It is stated that the petitioner has suppressed this fact from this Court. Rest of the averments in the petition is also resisted in the said reply on various grounds. It is also stated in the reply that the alleged membership, which is claimed by the petitioner-Union is also not correct. It is asserted in the reply that the respondent No.3-Association and the respondent No.5-Union have always protected the rights of the workers, who are their members and have entered into genuine and reasonable settlements on behalf of the workmen. Regarding membership also, it is claimed that they are having majority membership of the workmen. 7. On behalf of respondent No.5, petition is resisted by filing affidavit-in-reply. In the said reply, it has been pointed out that the recognition of the Unions under the Code of Discipline is completely voluntary in nature, that the provisions for recognition of the Unions under the Code of Discipline clearly stated that "the Code of Discipline lays down certain criteria for recognition of unions by the Management on a voluntary basis". The recognition of any Union under the Code of Discipline is a completely voluntary process and the same is not enforceable by way of a writ petition. Recognition of Unions is based on the Code of Discipline accepted by the Management and for this purpose, any Union desirous of getting recognized, has to fulfil the criteria laid down by the said Code. Other averments in the petition are also denied by detailed averments in the affidavit-in-reply by the said Union. It is stated in the said reply that the petitioner has no legal or statutory right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. It is also stated that membership fees of the members of the respondent No.3-Association and the respondent No.5-Union are deducted from their wages based on the individual authorization of the workers and this fact itself proves that the respondent-Association/Union command majority in the respective Projects. It is stated in the reply that Mr.R.H. Pathan, who has filed the present petition on behalf of the petitioner-Union, was, for a long period of time, a member of the respondent No.3, ONGC Employees' Association and he was Secretary of the said Association, but after having been defeated in the election of the Union, ultimately, this petition has been filed by him through the petitioner-Union and, therefore, at the instance of such person, the Court should not entertain the petition. On these and such other grounds, the present petition has been resisted by the said Union. 8. By way of further affidavit-in-reply, respondent No.5 has pointed out that so far as "The Policy to confer recognition to Unions in ONGC", at Annexure `A' is concerned, it is only a draft policy which was circulated among the Trade Unions in ONGC and discussed in the meeting on various occasions. Neither such a policy has been adopted or declared by ONGC, as projected by the petitioner in the petition nor the recognition granted to respondent Nos. 3 and 5 was based on this policy. It is further averred in the affidavit-in-reply that respondent Nos. 3 and 5 Unions have not signed this policy and, therefore, the policy still remains at a draft stage. He also further submitted that the policy in question was never meant to be a unilateral policy of the Management. It is also stated in the said affidavit-in-reply that there is no duty cast on the Chief Labour Commissioner (Central) to undertake any verification of membership or give recognition nor has he any right, under any law, to do so. It is also further stated in the aforesaid further affidavit-in-reply that the respondent-ONGC has been withholding the recognition of respondent No.5-Union in the Mehsana Project since 1978, even after verification by the authorities and declaring the result in favour of respondent No.5-Union. The same is due to the stay order granted by this Court in Civil Application No.484 of 1992 in First Appeal No.1771 of 1992, which arises from Civil Suit No.2 of 1978, which is filed by the respondent No.4-Union. On behalf of respondent No.2 also, further affidavit-in-reply has been filed, wherein reference is made to the "Policy of Recognition of Unions" in I.R. Manual 2001, copy of which is annexed with the said Further Affidavit-in-reply. It is stated in the said reply, on behalf of the ONGC, that secret ballot election is conducted by the Central Industrial Relations Machinery (CIRM) of the Ministry of Labour, Government of India. It is stated that pursuant to the election held in Mumbai by secret ballot in 1998, ONGC, Mumbai, vide letter dated 20.10.1998, withdrew recognition of Petroleum Employees' Union, Mumbai, and granted recognition to ONGC (BOP) Karmachari Sangathana, Mumbai, for a period of two years. It is also stated that, in pursuance of the Notification dated 24.4.2001, election was held by secret ballot and recognition to Petroleum Employees' Union was granted for a period of two years by ONGC, by letter dated 23.7.2001. It is also further stated that after the election by secret ballot is over, the Returning Officer communicates the result to the Chief Labour Commissioner (Central), and the Secretary, Labour Ministry, Government of India, and accordingly, the Chief Labour Commissioner (Central) informs to the Head Office of the ONGC. Thereafter, ONGC Head Office informs the Regional Head for grant of recognition to the majority Union. By filing the aforesaid affidavits-in-reply, the ONGC has cleared its position to the effect that after carrying out the verification, by way of secret ballot, and having been informed about such result by the Chief Labour Commissioner (Central), further action is taken for grant of recognition to the majority Union. Along with its further Affidavit-in-reply on behalf of the ONGC, copy of "Policy of Recognition of Unions", given in I.R. Manual, 2001 is annexed at page 145 of the compilation. On behalf of respondent No.2, by way of Annexure `IV', at page 180, the letter of the Executive Director of the ONGC, Mumbai, addressed to the General Secretary, Petroleum Employees' Union, communicating the decision of the ONGC, recognizing Petroleum Employees' Union in relation to ONGC Mumbai for a period of two years, is also placed. In the said letter, it is mentioned by the Executive Director that in pursuance of the results of the Secret Ballot undertaken for verification of membership of Unions in ONGC Limited, MRBC, Mumbai, as communicated by the Government of India, Ministry of Labour, vide their letter dated 16th July, 2001, Petroleum Employees' Union is hereby accorded recognition in relation to ONGC Limited, MRBC, Mumbai, under the Code of Discipline for a period of two years. In view of the aforeaid, it is submitted by Mr.R.H. Mehta, learned Advocate for the ONGC, that the ONGC is following secret ballot system for the purpose of giving recognition to the concerned Union and that such verification has already been successfully carried out at ONGC Limited, MRBC, Mumbai. 9. On behalf of the petitioner-Union, it is argued by Mr.Clerk, learned Advocate for the petitioner, that even though the petitioner-Union is having majority of membership, yet, the ONGC is not giving recognition to them. He says that no verification is carried out since last so many years and, therefore, in order to find out the current position about the membership, proper verification of the membership is required to be carried out by way of secret ballot system. Mr.Clerk further submitted that it is absolutely unjust on the part of the ONGC not to initiate any action for so many years for the aforesaid purpose, by which the Unions, who have lost the majority and who are in minority, are still enjoying the status of the recognised Unions and such Unions / their representatives are called for negotiations and are continued with all facilities, like office accommodation, telephone, etc. It is submitted that the last verification process was carried out as back as in the year 1978. He, therefore, submitted that necessary directions are required to be issued, asking the Chief Labour Commissioner (Central) to conduct fresh process of verification, for the purpose of verifying the membership of Unions and that the respondent Nos. 1 and 2 also may be directed to withdraw all the facilities given to respondent Nos.3 to 5 Unions. It is also prayed that respondent Nos. 1 and 2 should act as per the Circular dated 10.8.2000, issued by the Central Government, which is at Annexure `F' to the petition. 10. On behalf of ONGC, Mr.R.H. Mehta, learned Advocate, submitted that the ONGC is not favouring any Union, as, for ONGC, all Unions are alike and ONGC is not adopting any partisan attitude towards any of the Unions. He further submitted that in view of the interim relief granted in Civil Application No.484 of 1992 in First Appeal No.1771 of 1992, it was not possible for the ONGC to carry out the process of verification of membership of the Unions. Mr.Mehta has also further stated that, as has been done in Mumbai, the ONGC is willing to follow the same procedure for recognition of the Union in Gujarat and in case any election is held for verification of the membership of the Unions, ONGC is willing to follow the same procedure which is followed in Mumbai for granting recognition to the concerned Union, who may ultimately be able to prove its majority after verification of membership of Unions by way of secret ballot, which is required to be carried out for the purpose of verification of its membership. 11. On behalf of the contesting Unions, petition is opposed by Mr.Sinha, who is appearing for respondent Nos. 3 and 5, and Ms.Mehta, who is appearing for respondent No.4. Mr.Sinha for respondent Nos. 3 and 5 submitted that the petitioner has no legal right worth the name and, therefore, no relief can be granted in the present petition. He further submitted that no registered Trade Union can, as a matter of right, claim that they should be given recognition by the Management. He, therefore, submitted that no such legal right is available in favour of the petitioner to claim recognition. He further submitted that if there are so many registered Trade Unions, the Management can recognize few of them in order to decide some policy questions. Mr.Sinha further submitted that no such policy, as claimed by Mr.Clerk and Mr.Mehta for the ONGC, is in existence and the reference to the policy, which is given in the petition, is merely a draft policy. Mr.Sinha also further submitted that in view of the pending proceedings, to which reference is made hereinabove, regarding First Appeal and Civil Application, if verification process is delayed, no fault can be attributed to the respondent No.3 or respondent No.5. Mr.Sinha has also further stated that the policy, which has not come into existence, cannot be enforced. He further submitted that there is already a Check Off system which is one of the modes of recognizing registered trade unions and the said system is going very well, by which membership of the Union can be verified. He also denied the argument of Mr.Clerk that the members of respondent Nos. 3 and 5 are enjoying recognition without there being any verification of their membership. It is submitted by Mr.Sinha that, as per Check Off system, membership of respondent Nos. 3 and 5 Unions is verified. He submitted that, it cannot be said that the aforesaid Check Off system has failed and that, therefore, it is required to be replaced with the secret ballot system. 12. Ms. Mehta for the respondent No.4-Union has stated that her client is agreeable so far as verification of membership is concerned, but she submitted that it should not be by secret ballot. It is submitted by her that respondeat No.4 is a recognised Union for the entire Western Region. 13. On behalf of the newly added respondent No.6, i.e. Chief Labour Commissioner (Central), Mr.M.R. Shah submitted that respondent No.6 is willing to carry out the verification of membership through secret ballot within a reasonable period. 14. I have heard all the learned Advocates in great detail and I have gone through the petition as well as the affidavits-in-reply and the affidavit-in-rejoinder. I have also gone through the various judgments cited by the Advocates of both the sides in support of their contentions. 15. The principal question which is involved in this petition is whether ONGC should follow the policy of secret ballot system for verification of membership of the Unions for the purpose of granting recognition to a particular Trade Union in its organisation. It is also required to be noted whether the petitioner has got any legal or enforceable right to ask for such verification of membership only through the secret ballot system. It is also required to be considered whether the petitioner has got any right to ask for recognition from the ONGC. 16. It is required to be noted that so far as ONGC is concerned, it takes policy decisions in consultation with recognised unions. In the organisation, there may be so many registered trade unions, but in order to see that such decisions are taken expeditiously, without consuming time, if certain Unions, who are having larger membership, are called for, for such negotiations, it may help the organisation in taking quick decision and the say of the Union, which represents majority of the workmen, can also be taken into consideration. It is, therefore, not necessary for the ONGC to consult all Registered Unions in this behalf and, therefore, if the ONGC, which is a `State', within the meaning of Article 12 of the Constitution of India, takes any decision after consulting a particular union, which is having majority of the membership, it has to see that such Union really represents majority of the workmen of the Organisation. ONGC, being a Public Body, is supposed to act in a reasonable manner in this behalf. It is the duty of the ONGC, therefore, to see that a Union, which is called for negotiation on the basis that such Union is having particular number of members with it, is really possessing membership of majority of the members of the organisation. Therefore, while adopting the said policy of calling such recognised Union for negotiation, ONGC naturally cannot bypass the claim of a Union, which is having majority of the members with it and for that purpose, ultimately, if a decision has been taken by the ONGC to verify membership of the Union regularly, during every two years by adopting the system of secret ballot for the purpose of carrying out the verification of the membership of the Unions, it cannot be said that such action of the ONGC is not reasonable or arbitrary. In the instant case, the ONGC has already clarified its stand in its further affidavit at page 142. Reference is also made on behalf of