IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :14-6-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.6334 of 2011 & M.P.No.1 of 2011 1. Coimbatore Periyar Districts Dravida Panjalai Thozhilalar Munnetra Sangam, rep.by its General Secretary S.Doraisamy, No.69, Tatabad 3rd Street, Coimbatore – 641 012. 2. Sivagangai Mavatta Marumalarchi Panjalai Thozhilalar Munnetra Sangam (MLF), rep.by its General Secretary Muthukrishnan, Rajagambeeram, Sivagangai District. 3. Gopalsamy, Warehouse Department, Ticket No.21/4047, C/o.General Manager, Coimbatore Murugan Mills, Mettupalayam Road, Coimbatore – 641 043. 4. S. Rajendran 5. S. Sivasamy 6. P. Periyasamy ... Petitioners Vs. 1. National Textile Corporation Limited, Rep. by its Senior Manager (Human Resources), N.T.C. House, Post Box No.2409, 35 B Somasundaram Mill Road, Coimbatore – 641 009. 2. Coimbatore Murugan Mills, rep.by its General Manager, Mettupalayam Road, Coimbatore – 641 043. https://hcservices.ecourts.gov.in/hcservices/ 3. Pankaja Mills, rep.by its General Manager, 30, Pankaja Mills Road, Puliyakulam, Coimbatore – 642 045. 4. Sri Rangavilas Ginning, Spinning & Weaving Mills, rep.by its General Manager, Peelamedu, Coimbatore – 4. 5. Kaleeswarar Mills "B" Unit, rep. by its General Manager, Kalaiyar Koil – 630 551. Coimbatore. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, seeking a Writ of certiorarified mandamus, calling for the records from the first respondent relating to the impugned letter dated 29.1.2011 bearing reference No.IR/2011-01 and quash the same as illegal, arbitrary and consequently direct the respondents 1 to 5 to continue to deduct subscription from its employees including the petitioners 3 to 6 who are members of the 1st and 2nd petitioners and remit the same to the 1st and 2nd petitioners irrespective of whether they have been recognised or not. For Petitioners : Mr.K.Srinivasamurthy for M/s.Row & Reddy For Respondents : Mr.C.V.Vijayakumar for Mr.T.R.Rajaraman O R D E R The prayer in the writ petition is to quash the order of the first respondent dated 29.1.2011 and direct the respondents 1 to 5 to continue to deduct subscription from its employees including the petitioners 3 to 6 who are members of the 1st and 2nd petitioners and remit the same to the 1st and 2nd petitioners irrespective of whether they have been recognised or not. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioners 1 and 2 are registered Trade Unions and petitioners 3 to 6 are members of one of the Union. The first respondent is a Government of India Undertaking. The National Textile Corporation owned seven national Textile Mills in Tamil Nadu, https://hcservices.ecourts.gov.in/hcservices/ i.e, five in Coimbatore District and one each in Sivagangai and Ramnad Districts. The said Mills were taken over by the Central Government. (b) According to the petitioners, several workers working in respondents 2 to 5 NTC Unions in Tamil Nadu are members of the first and second petitioner Trade Unions. Till the year 2010, respondents management were deducting subscriptions from the members of the Petitioners 1 and 2 Unions based on the list submitted by the petitioners 1 and 2 Unions and remitted the same into the account of petitioners 1 and 2 every month. It is stated that the said practice was in vogue for more than 25 years. (c) On 19.12.2010 election for recognition of the Trade Unions was conducted and four Trade Unions viz., INTUC, CITU, LPF and Coimbatore Regional Mill Labour Union were declared as recognised Trade Unions as they got more than 10% of the votes polled in all the NTC Mills in Tamil Nadu. The said recognition was granted for negotiation purpose on behalf of the employees. (d) On 27.12.2010 the Management of NTC Units addressed letters to the aforesaid four Unions recognised by the management to furnish the list of their members to enable the management to deduct subscription from their wages and remit to the Unions. The petitioners 1 and 2 were not issued with any such communication as they failed to get recognition. (e) According to the petitioner Mills, merely on the ground that the petitioners 1 and 2 Unions have not secured 10% of the total votes polled in the election, the respondents 2 to 5 are not justified in refusing to deduct subscription from the members of the petitioners 1 and 2 Unions and remit the same to the Unions. The said action is not only in violation of the practice followed hitherto, but also in contravention of the judgment of the Division Bench of this Court reported in 1989 (1) LLJ 554 (State Bank Staff Union v. State Bank of India). (f) It is stated in the affidavit that the petitioners sent a representation on 8.1.2011 and pointed out the above referred judgment and demanded the respondents Management to deduct Union subscription from the members of the petitioners 1 and 2 Unions as per their willingness expressed by its members. On 10.1.2011 the petitioners 1 and 2 submitted the list of members together with authorisation letters signed by the individual workers to the respondents 2 to 5 and requested them to deduct Union Subscription. (g) However, the management did not deduct any such subscription and consequently on 28.1.2011 petitioner submitted a representation before the first respondent for which the first respondent replied on https://hcservices.ecourts.gov.in/hcservices/ 27.1.2011 stating that the respondents will deduct subscription only for the Trade Unions which had secured 10% of the total votes polled, which are granted recognition. According to the petitioners, recognition of Trade Unions has no bearing on the deduction of subscription on behalf of the petitioners 1 and 2 Unions from its members based on their authorisation. It is also contended in the affidavit that the Payment of Wages Act, 1936 contemplates deduction of contribution for Unions from the members of the Unions based on the authorisation given by the individual workers. Raising the said grounds the writ petition is filed with the above said prayer. 3. The respondents have filed counter affidavit contending that on 19.12.2010 election was conducted for choosing the Trade Unions for negotiation purpose with the management and for recognition of Trade Unions. Only four Unions secured 10% of the total votes polled and the said four Unions alone were recognised. Petitioners 1 and 2 Unions have not secured 10% of the votes polled in the said election and therefore recognition was not granted to the petitioners 1 and 2 and contribution cannot be deducted for the said Unions merely because they are registered Unions under the Trade Unions Act, 1926. It is also stated in the counter affidavit that the respondents are in no way responsible to deduct subscription from the members of the petitioners 1 and 2 Unions. The Corporation cannot be forced to deduct subscription from the members of the unrecognised Unions as per the earlier practice. 4. Heard the learned counsel for the petitioners as well as learned counsel appearing for the respondents. 5. The issue arises for consideration in this writ petition is as to whether the respondents are justified in not deducting subscription from the members of the petitioners 1 and 2 Unions and remit the same to the Unions account in spite of the authorisation given by the individual workers, who are members of the said Unions. 6. The right to form Trade Unions is guaranteed as a fundamental right under Article 19(1)(c) of the Constitution of India. The said right includes the right to continue as a member of the Union. The petitioners 1 and 2 Unions are registered under Section 2(e) of the Trade Unions Act, 1926. The members of the Trade Unions are admitted as members in terms of Section 6(e) of the Act. The payment of subscription by members to the Trade Unions are made compulsory under Section 6(ee) of the Act. The Trade Unions cannot refuse to receive subscription from its members. The same is declared as a right of the members as decided by the Honourable Supreme Court in the decision reported in AIR 1974 SC 1789:(1974)4 SCC 852 (M.T.Chandrasenan v. N.Sukumaran). https://hcservices.ecourts.gov.in/hcservices/ 7. It is not in dispute that so long as the registration of Trade Union is not cancelled, the Unions will enjoy certain rights, of course with liabilities, in terms of Section 15 of the Trade Unions Act, 1926. Section 7(2)(kkk) of the Payment of Wages Act, 1936 deals with the deduction of subscriptions from the willing members and the employer is bound to deduct and remit the same into the account of the Trade Union. The said provision viz., Section 7 (2)(kkk) reads as follows: "7. Deductions which may be made from wages. (1) .................. (2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely: .............. (kkk) deductions made, with the written authorisation of the employed person, for payment of the fees payable by him for the membership of any trade union registered under the Trade Unions Act, 1926 (16 of 1926)." Thus, there is a statutory duty/obligation on the part of the employer to deduct subscription payable by the members of the petitioners 1 and 2 Unions, who have given consent/authorisation in writing. The action of the respondents in refusing to deduct and remit the amount to the account of the petitioners 1 and 2 is a statutory violation and the same amounts to defeating the object of forming the Trade Unions followed with registration. 8. It is also not in dispute that for the past 25 years deductions were made towards Union subscription, irrespective of whether the Unions are recognised or not. The election conducted on 19.12.2010 is for recognising the Trade Unions for negotiation with the management. For recognition, 10% of total votes polled was made as pre-requisite and four Unions having got more than 10% of the votes polled and they were granted recognition by the respondent management. 9. The issue regarding recognition of the Trade Unions for the purpose of negotiation was considered by the Supreme Court in the decision reported in 1995 Supp (1) SCC 678 (Food Corporation of India Staff Union Vs. Food Corporation of India and Others). The said decision was rendered setting out the procedures and norms to be followed for assessing the representative capacity of the Trade Unions. The recognition of the Trade Unions for the purpose of making deductions from the employees of the Trade Unions was not at all the issue in the said decision of the Honourable Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 10. The said issue was specifically raised before the Division Bench of this Court in the decision reported in 1989 (1) LLJ 554 (State Bank Staff Union v. State Bank of India). In the said decision, the Division Bench held that if individual employee voluntarily made written request, the same can be implemented by the management till the said individual employee withdraws the same. The said Division Bench accepted the arguments made on the basis of Section 7(2)(kkk) of the Payment of Wages Act, 1936, which empowers the registered Trade Unions to request the management to make deductions based on the written authorisation of the members of the registered Trade Unions. 11. In this case, the members of the Trade Unions belonging to the petitioners 1 and 2 have already given consent letters for deduction of their contribution payable. Thus there is no impediment to deduct the contribution for payment to the concerned Unions depending upon the consent given by the individual employees. The petitioners are specifically demanding to deduct subscription only from the employees, who have given their consent/authorisation. 12. In the counter affidavit filed by the respondents, the point raised by the petitioners in the affidavit regarding the provision for the deduction of contribution contemplated under Section 7(2) (kkk) has not been answered even though the same is specifically raised. The learned counsel for the respondents was also not in a position to advance any argument on the said aspect. 13. The said issue having been considered by the Division Bench of this Court in the above decision and in view of the statutory provision which is applicable to the respondents herein, the petitioners are justified in their demand for deduction of subscription for the consenting members and remit the same to the petitioners 1 and 2. As already stated, for the the past 25 years the said practice is being continued. As long as a practice which was in vogue for several years, which is not prohibited under any statutory rule, the respondents are not justified in taking a different stand merely because election was conducted for recognising the Unions eligible to participate during negotiations. 14. If the arguments of the respondents are accepted, it will be in effect promoting the recognised Unions alone and not the registered Trade Unions, which are not satisfying the eligibility for recognitions due to non-securing of particular percentage of the votes polled. Registration under the Trade Unions Act, 1926 gives some benefits and the petitioners 1 and 2 having enjoyed the said benefit for the past 25 years and the same having not been restricted by any enactment or by a judgment of the Honourable Supreme Court, the respondents are bound to comply with the request made by the respondents 1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 15. In the result the writ petition is allowed. The impugned order passed by the respondents dated 29.1.2011 is unsustainable and the same is set aside. The respondents are directed to deduct membership contribution payable to the Unions from the salary of willing members based on their written authorisation and remit the same into the account of petitioners 1 and 2 from the month of June, 2011. No costs. Connected M.P.No.1 of 2011 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To The Senior Manager (Human Resources), National Textile Corporation Limited, N.T.C. House, Post Box No.2409, 35 B Somasundaram Mill Road, Coimbatore – 641 009. +1 CC to Mr.T.R.Rajaraman, Advocate, S.R.No.33993 +1 CC to M/s.Row and Reddy, Advocate, S.R.No.34522 Order in W.P.No.6334 of 2011 TAM(CO) SRA(27/6/2011) https://hcservices.ecourts.gov.in/hcservices/