IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.09.2009 Coram: The Honourable Mr.H.L.GOKHALE, CHIEF JUSTICE and The Honourable Mr.Justice D.MURUGESAN Writ Petition No. 17991 of 2008 and Writ Appeal No.674 of 2009 with connected miscellaneous petitions MRF United Workers Union (Reg.No.1169/VLR), Rep. by its General Secretary, Adaullah Street, Sholingar Road, Arakkonam – 631 001. … Petitioner/Appellant in WP.17991/08 WA.674/09 vs. 1. Government of Tamil Nadu, Rep. by its Secretary, Labour and Employment Department, Fort.St.George, Chennai – 600 009. 2. Union of India, Rep. by its Secretary, Ministry of External Affairs, New Delhi. 3. The Secretary, Ministry of Labour, Shram Shakti Bhavan, New Delhi. .. Respondents in WP.17991/08 and in WA.No.674/09 4. The Management of MRF Limited, Rep. by its Chairman and Managing Director, Greams Road, Chennai – 600 006. 5. The Plant Manager, MRF Limited, Iichiputhur, Arakonam Taluk. https://hcservices.ecourts.gov.in/hcservices/ 6. MRF Arakonam Workers Welfare Union (Regn.No.1268/VLR), No.4, Shastri Nagar, Ichiputhur, Arakonam Taluk. … Respondents/Respondents Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus to direct the respondents 1 to 3 to forthwith take such appropriate steps as are necessary to ensure the implementation of the recommendations contained in the 348th Report of the International Labour Organisation’s Governing Body’s Committee on Freedom of Association in Case No.2512 (India), in particular, forthwith ensure recognition of the petitioner union by respondents 4 and 5 and issue such further or other orders or directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. AND Appeal filed under Clause 15 of the Letters Patent against the order passed in V.M.P.No.1/09 in M.P.No.1/08 in W.P.No.17991/2008 dated 05.05.2009. For Petitioner/Appellant : Mr.V.Prakash, Senior Counsel with Ms.Ramapriya For Respondent 1 : Mr.Raja Kalifulla, Govt. Pleader (in both) For Respondents 2 & 3 : Mr.C.S.Sundar Raj, ACGSC(in both) For Respondents 4 & 5 : Mr.Sanjay Mohan, Senior Counsel for M/s.S.Ramasubramaniam Associates (in both WA.& WP.) For Respondent 6 : Mr.R.Muthukumarasamy,Senior Counsel with Mr.K.M.Ramesh(in both) J U D G M E N T THE HON’BLE THE CHIEF JUSTICE This writ petition raises an important question with respect to the procedure for recognition of a trade union as the representative body of workmen in an industry in the absence of a specific statutory provision of law. 2. MRF Limited (Madras Rubber Factory) is a leading Tyre manufacturing company situated in Ichiputhur Village of Arakonam Taluk in Vellore District of Tamil Nadu. It is having its Corporate Office in Chennai. It employs around 1500 workmen in different https://hcservices.ecourts.gov.in/hcservices/ capacities, and it is one of the major industrial units situated in the vicinity of Chennai. 3. The appellant/petitioner is a Registered Trade Union, which claims to represent majority of the workmen functioning in this industry. Respondent No.6 is another Trade Union, which also claims to have majority membership. Respondent No.4 is the Management of MRF Limited and Respondent No.5 is its Plant Manager. Respondents 4 and 5 are stated to be entertaining Respondent No.6 and not the petitioner for the purposes of negotiations and settlement. 4. The Petitioner Union was registered under the provisions of the Trade Unions Act, 1926 on 29th December, 2003, and claims to be representing the causes of the workmen. It is the case of the Petitioner Union that Respondent No.4-Management has not been giving fair wages to the workmen, that it has been paying piece rate wages and is indulging in Unfair Labour Practices and acts of discrimination against the Petitioner Union and its office bearers. 5. In February, 2004, the Petitioner Union wrote to Respondents 4 & 5 that since it is representing nearly 898 of the 1029 permanent workmen of the company, it be recognized as the representative union, and another Union, which was being entertained by the Management at that time namely, MRF Cycle Tyre Unit Employees Association, be not permitted the facility of deduction of membership fees from the wages of the employees. The Management did not entertain that request, nor did it recognize the Petitioner Union. Agitated over the same, the petitioner filed a Civil Suit before this Court for a declaration that it is the majority union, but the said suit was not entertained on the ground that the High Court did not have the territorial jurisdiction to entertain the suit. 6. On 17th May, 2004, the Petitioner Union wrote to the Commissioner of Labour, Chennai seeking determination of its majority on the basis of a secret ballot. But the Commissioner of Labour wrote back on 30th June, 2004 stating that there was no law providing for any such determination. The Petitioner Union raised a charter of demands on 25th November, 2004. Meanwhile, Respondent No.4 entered into a settlement with the above referred MRF Cycle Tyre Unit Employees Union on 22nd December, 2004. The Petitioner Union raised an Industrial Dispute before the Deputy Commissioner of Labour questioning the validity of this settlement. The Petitioner Union also expressed its willingness to prove its majority by a secret ballot. This submission was made during the conciliation proceedings. 7. In May, 2006, Respondent No.4-Management announced that majority Union will be decided by a secret ballot. It is, however, the case of the Petitioner Union that though its representatives got elected by a huge margin, it was not to the liking of the Management and hence it asked the newly elected office bearers to resign. It is at that stage that Respondent No.6-Union has been registered in July, 2006 and it has been given the facility of deduction of membership fees from the wages of the workmen. https://hcservices.ecourts.gov.in/hcservices/ 8. It is the case of the Petitioner Union that since it had no other remedy, it lodged a complaint before the Committee on Freedom of Association, which is a Committee of the International Labour Organisation’s Governing Body (in short ‘ILO’). The complaint was registered as Case No. 2512(India). In view of the complaint being taken up by the ILO, the Labour Officer, Vellore was directed by the Government of Tamil Nadu to enquire into the complaint and submit a report. The Labour Officer Mr.Dharmaseelan gave a report dated 27th/28th March, 2007 accepting the claim of the Petitioner Union that it was the majority union. The Petitioner Union got a copy thereof only after applying under the Right to Information Act, 2005. 9. In November, 2007, the 348th Report of the Committee on Freedom of Association in respect of the above Case No.2512 (India) was published. In paragraph-904 of the said report, the Committee stated that the determination of the most representative trade union by a secret ballot was not only an accepted one, but also a desirable way to choose a collective bargaining agent. The Committee also stated that it had found that the Petitioner Union has more than 70% membership of the total permanent workers, and it recommended the Government to take appropriate measures in that behalf. The Commissioner of Labour, Chennai, however, wrote to the Petitioner Union on 18th April, 2008 stating once again that there was no specific law for recognizing the Trade Union in the State of Tamil Nadu, though the Petitioner Union could submit a petition to the State Evaluation and Implementation Committee. That led to the filing of Writ Petition No.17991/2008 by the Petitioner Union seeking a direction to implement the recommendation of the Committee on Freedom of Association in Case No.2152 (India). The Petitioner Union also filed M.P.No.1/2008 to restrain Respondent No.4 from entering into any settlement with Respondent No.6-Union. 10. During the pendency of the writ petition, an interim injunction was granted 28th July, 2008. The Petitioner Union took out another miscellaneous petition viz., M.P.No.2/2008 on 22nd October, 2008 to restrain Respondent No.4-Management from making any deduction from the wages of its members in favour of Respondent No.6. It is the case of the Petitioner Union that the Committee on Freedom of Association in its 351st Report, which was published in November, 2008, reiterated that the Petitioner Union should not be driven to take recourse to the procedure suggested by the State Government as prescribed under the Code of Discipline for determining the representative status, as the said procedure is only recommendatory. This code is evolved and ratified by the Indian Labour Conference in its 16th Conference held in May, 2008, which came into force from 1st June, 1958. The conference consists of all Central Employers’ and Workers’ Organisation and Government representatives and it provided for the recognition of trade union on the basis of verification of the record of their membership. The Committee once again reiterated its recommendation for recognizing the Petitioner Union. On 15th April, 2009, Respondent No.6-Union filed V.M.P.No.1/09 to vacate the injunction earlier granted on 28th July, 2008 in M.P.No.1 of 2008. A https://hcservices.ecourts.gov.in/hcservices/ learned single Judge who heard the matter vacated the order of interim injunction on 15th May, 2009. Respondent No.4-Management is reported to have imposed a lock out thereafter which continued till 27th May, 2009. The aforesaid interim order of vacating the injunction led to the filing of the present writ appeal in W.A.No.674 of 2009. 11. The Writ Appeal came up before a Division Bench during summer vacation on 15th May, 2009, which Bench directed the parties to maintain status quo in respect of the settlement dated 9th May, 2009. Thereafter, the matter came up before this Bench on 9th June, 2009. Learned senior counsel appearing for Respondent No.4 submitted that around 765 workmen had signed that settlement prior to the grant of order of status quo and that some 115 more workers were also agreeable to take the benefits of that settlement. This was disputed by the learned senior counsel appearing for the petitioner/appellant. 12. It is the case of the appellant that in the meanwhile there was further agitation by the workmen and there was laticharge on the workers on 20th May, 2009, whereas it is the case of the Management that the workmen have subsequently taken law into their hands and damaged the Corporate Office. On this background, it was thought fit that the writ petition itself be heard and decided finally along with the writ appeal. Accordingly, with the consent of the parties, the writ petition was taken up before this Division Bench and arguments of the counsel for all the parties were heard. 13. Learned counsel for Respondent Nos.4 & 5 has filed written arguments on 4th August, 2009. The learned counsel for the petitioner has filed her written arguments on 6th August, 2009, and the counsel for the 6th respondent has filed his written arguments on 11th August, 2009. 14. Factual Scenario - The Petitioner Union is contending that the service conditions of the workmen in the Respondent 4 – Management are not satisfactory, considering the financial strength of the company. It is contended that any time an attempt is made to seek improvement in their service conditions by a genuinely representative trade union, the Management comes down on the representatives of the workmen some way or the other. It is submitted that the Management sees to it that no such trade union gets any hold, and is reluctant to negotiate with any such trade union, leave aside recognizing it as a representative of the workmen. It is submitted in this behalf that when an attempt is this behalf was made earlier, another union namely, MRF Cycle Tyre Unit Employees Union was supported by the Management, and now that the Petitioner Union is representing the majority of the workmen, Respondent 4-Management is supporting the Respondent 6-Union. It is their case that since the Labour Department of the State Government was not supportive; the Petitioner Union was constrained to lodge a complaint to the Committee on Freedom of Association of the ILO. The Committee has given two reports, firstly the 348th Report in November 2007 and thereafter, the 351st Report in November, 2008. The ILO has https://hcservices.ecourts.gov.in/hcservices/ collected the information from Mr.Dharmaseelan, Labour Officer, Vellore, who has found that more 70% of the total permanent workmen were members of the Petitioner Union. It is observed by the Committee in its 348th Report that the determination of the most representative trade union by a secret ballot was not only an accepted one, but also a desirable way of choosing a collective bargaining agent. After the report of Mr.Dharmaseelan, in its 351st Report, the Committee has observed that the Petitioner Union should not be driven to take recourse to the procedure prescribed under the Code of Discipline, since that procedure is recommendatory in nature. 15. As against this submission of the Petitioner Union, the 6th Respondent-Union submits that out of some 1400 confirmed workmen of the Company, 1249 are its members and that it is a majority union, which was recognized by the Management, immediately after it was formed, as the sole bargaining agent. It is submitted that after the formation of the 6th respondent-union in the year 2006, the workmen who joined this Union have given their individual letters in writing to the 5th respondent-management authorizing it to deduct their subscription from their monthly wages and this Union is enjoying what is called check-off facility, which will prove its membership strength. It was also contended that the bonus and all other issues of the workmen are amicably settled with the Management. 16. The previous agreement, governing the service conditions, is stated to have expired on 31st December, 2008 and the 6th Respondent -Union has entered into a settlement with the Management on 9th May, 2009. This Union contends that 765 workmen have given individual letters agreeing to abide by the terms of the settlement dated 9th May, 2009, and the Management has extended the benefit of settlement to them. The Management has, however not extended it to some 157 workmen in view of the order of status quo granted by the Division Bench of this Court, though they were ready and willing to take the benefits. The settlement has been signed after the interim order granted earlier by the learned single Judge was vacated by the impugned order dated 5th May, 2009. The 6th respondent is relying upon the letters given by the workmen, which are attested by a Notary, as against which the Petitioner Union is very much disputing the authenticity of those notarised letters. This Union further states that though the Petitioner Union called for a strike, some 900 workmen out of the 1400 workmen reported for work every day. It is submitted that this can also be seen from the punching on the cards made by the workmen when they enter the factory as soon as the shift starts. This Union denies the allegation that the signatures of the workmen are not genuine. This Union submits that the Settlement Deed dated 9th May, 2009 is a settlement under Section 18(1) of the Industrial Disputes Act, 1947 (in short ‘the Act’), which is binding only on the parties to the settlement. In case the Petitioner Union is not satisfied with it, it is open to the Petitioner Union to challenge the same under the Act. This Union submits that the Petitioner Union is trying to create a rift among the workmen with a view to gain foot hold in the company. This Union denies that it is a puppet union put up by the Management. https://hcservices.ecourts.gov.in/hcservices/ 17. As far as the Management is concerned, it denies the allegation that it is harassing the workmen, who join the Union not liked by the Management. According to the Management, the service conditions of the workmen have been good and have considerably improved in view of the settlement of 9th May, 2009 and that majority of them have accepted it voluntarily and if the Petitioner Union is unhappy about it nothing prevents it from challenging the settlement by raising a dispute under the Industrial Disputes Act. It is submitted that it is the discretion of the Management to recognize a Union as it thinks proper and it will recognize the Union which fosters industrial peace and not the Petitioner Union which is disturbing the industrial peace in the factory. The Management has drawn our attention to the incidents of strike, agitations and violence resulting into loss of production on number of occasions. 18. Legal Submissions: The Petitioner Union submits that the right to form association is protected under Article 19(1)(c) of the Constitution of India and to establish employer-sponsored trade unions of workmen is specifically mentioned as an Unfair Labour Practice under Item-3 of the fifth Schedule of the Act. The various Unfair Labour Practices on the part of the employers and associations of employers mentioned in the first part of the fifth schedule of the Act are clearly deprecated under the Act and Section 25-T of the Act prohibits Unfair Labour Practice and a penal provision is made under Section 25-U of the Act. Learned senior counsel for the Petitioner Union has drawn our attention to the judgment of the Apex Court in Visaka v. State of Rajasthan, 1997 (6) SCC 241 to submit that in judicial construction regard must be had to international conventions and norms. Similar is the view in Apparel Export Promotion Council v. A.K.Chopra, AIR 1999 SC 625 (see para-28 of the judgment). 19. Article 51-c of the Constitution requires the State to foster respect for international law and treaty obligations. International norms with respect to recognition of trade union have been stipulated in paragraph-904 of the 348th Report of the Committee. One basic norm is that the employer should recognize an organization, which is representative of the workers for the purpose of collective bargaining, and the organization to be recognized for that purpose must satisfy the two criteria, namely, it must be representative and independent. The report also lays down the norms for the determination of the most representative trade union by a secret ballot is not only an acceptable one, but a desirable way to ensure the workers’ rights to choose their organization. 20. As against this submission of the Petitioner Union, the Management as well as the 6th respondent submits that the Management cannot be forced to recognize any particular Union and in fact, it is a matter of discretion for the Management to recognize any particular Union, more particularly when there is no statutory provision. In support of this submission, the respondents relied upon the dicta of https://hcservices.ecourts.gov.in/hcservices/ the Apex Court in Bal Ram Bali v. Union of India reported in 2007 (6) SCC 805 wherein it has been held that no such prayer should be granted which would amount to issuing directions to the State Government to frame a law as the same is not within the purview of the Courts. 21. As far as the State Government is concerned, in the counter filed by one S.Arumugam, affirmed on 19th August, 2008, it is stated in para-38 as follows: - “More over there is no law for Recognition of a trade union in the State of Tamil Nadu. With reference to the Trade Union, claiming to be a sole bargaining agent, a procedure has been laid down as per the Code of Discipline and the process emanates by submitting a petition before the State Evaluation and Implementation Committee. The Petitioner Union has to undergo the procedure laid down as per the Code of Discipline to claim the status of sole representative of workers in collective bargaining.” 22. We have considered the factual situation, as well as the submission of the parties before us. MRF is a major industrial unit situated on the outskirts of Chennai city, which has around 1400 permanent workmen, and further temporary work force as required from time to time. It is one of the oldest companies in the vicinity of Chennai. Although it is contended by the Management that the service conditions are good and that it cannot give anything more than what it has agreed in the settlement of 9th May, 2009, the fact remains that there is a large section of workmen which appears to be dissatisfied with the terms of the settlement. The genuineness of the notary letters tendered by the 6th respondent is seriously disputed by the Petitioner Union. It is another matter that if the Petitioner Union is dissatisfied with the terms of the settlement, its remedy is to terminate the same and invoke the machinery provided under the Act. At the same time, the fact remains that there has been continuous strife in this company leading to agitations by the workmen resulting in production coming to a halt. Either a good section of the workmen have gone on strike or the Management has declared lock out and the Management has been initiating action against the workmen whom the Petitioner Union claims to be the genuine representative of the workmen. Much of the problem appears to be because of the workmen not having a truly representative and independent union to address their cause. As set out earlier one attempt was made in this behalf in May, 2006 by holding a secret ballot, but since the representatives elected were not to the liking of the Management, they were asked to resign and the sixth respondent has been given the facility of deduction of membership fees from the wages of the workmen. https://hcservices.ecourts.gov.in/hcservices/ Desirability of having a representative union recognized:- 23. The desirability to have a truly independent and representative union of workmen to represent their cause cannot be lost sight off. A Management may think that the leadership of a particular trade union is militant, yet even such a union when it obtains a recognised status, it has to act within the four corners of law and discipline. Where the number of workmen is very large, it is also in the interest of the Management to have a truly representative collective bargaining agent to represent the workmen so that the Management can discuss with it the problems governing the production and industrial peace, and the decisions arrived at will have to be accepted by all the workmen. This being so, the question as to who should be the representative of the workmen is an aspect which has to be decided by the workmen themselves. It cannot be left to the Management that it will recognize a particular Union which it considers to be representative of the workmen. The Trade Unions Act, 1926, which is an Act to provide for the registration of Trade Union, is there on the statute book for the last over 80 years. It is no longer permissible nor possible for any management to disregard a trade union registered under the Act, and having a large following. If it does so, it would be at its own peril. 24. The fact that there should be a recognized union of the workmen can clearly be seen from various statutory provisions. Thus, as noted earlier, Article 19(1)(c) of the Constitution gives the right to the workmen to form association. The Industrial Disputes Act, 1947 has now introduced the concept of Unfair Labour Practice and Section 25-T of the Act prohibits Unfair Labour Practice on the part of the employers, workmen and also the trade union. Section 25-U of the Act provides that any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. 25. Unfair Labour Practice is defined in Section 2(ra) of the Act to mean any of the practices specified in the fifth schedule. The first part of the fifth schedule enumerates unfair labour practice on the part of the employers and the trade union of the employers. The first four items of the first part of unfair labour practice provides as follows: - 1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organize, form, join or assist a trade union or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, that is