IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9266 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgment? 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- CHEMICAL KAMDAR SANGH, Versus DY. COMMISSIONER OF LABOUR AND STATE IMPLEMENTATION & -------------------------------------------------------------- Appearance: MR AK CLERK for the Petitioner. Ms.Sheth, Assistant GOVERNMENT PLEADER, for Respondent No. 1-2 UNSERVED-REFUSED (R) for Respondent No. 3 MR GK RATHOD for Respondent No. 4 MR MUKUL SINHA for Respondent No. 4 MR MURALI N DEVNANI for Respondent No. 5 RULE SERVED BY DS for Respondent No. 6 MR KM PATEL for Respondent No. 7 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 22/08/2003 ORAL JUDGEMENT 1. By filing this petition, the petitioner-Union has challenged the communication / recommendation of respondent No.1 at Annexure 'A' dated 14th August, 2002. By the aforesaid communication, the Deputy Labour Commissioner and State Implementation and Evaluation Officer has informed the Chief Operating Officer (COO) of Tata Chemicals Limited, Mithapur to give recognition under the Code of Discipline to Tata Chemicals Skilled Mazdoor Sangh, Mithapur, i.e. respondent No.4 herein, on the ground that majority employees of the Company are the members of the said Union, i.e. 65% of the employees. The aforesaid recommendation made by the said Officer to the Company, by his letter dated 14th August, 2002, is challenged at the instance of the petitioner-Union on the ground that the Deputy Commissioner of Labour and State Implementation and Evaluation Officer, who is joined as respondent No.1 in the petition, has not carried out the verification process in a proper manner and that the said Officer has carried out the verification process contrary to the Code of Discipline. 2. The petitioner Union is a registered Union, having its registration No.1533. According to the petitioner, the petitioner Union has got 1651 members out of 1900 workmen of respondent No.7-Company. There are five unions of workmen of respondent No.7-Company. The controversy in question started in view of the application submitted by respondent No.3-Union to the Deputy Labour Commissioner, Rajkot for being recognised as majority Union in respondent No.7-Company. On 27.12.2001, one Mr.M.V. Jadeja, Deputy Commissioner of Labour, Rajkot, addressed a letter to the petitioner-Union, calling upon the said Union to furnish necessary information by 10th January, 2002. Having received the aforesaid intimation from the said Mr.Jadeja, the petitioner-Union addressed a letter to the said Mr.Jadeja, Deputy Commissioner of Labour, requesting him to discontinue the proceedings, as, the petitioner-Union had no confidence in the said Mr.Jadeja. The said apprehension was aired by the petitioner in view of the past controversy. 3. At this stage, reference is required to be made to the controversy, which had arisen in the past. In the year 1987, respondent No.4-Union preferred an application for being recognised as a Majority Union and pursuant thereto, said Mr.M.V. Jadeja, Deputy Commissioner of Labour and State Implementation and Evaluation Officer, started verification process under the Code of Discipline. The petitioner-Union had challenged the order by way of filing a writ petition, being Special Civil Application No.1840 of 1988. Similarly, respondent No.4-Union herein also challenged the decision of the Authority by way of filing another writ petition, being Special Civil Application No.1663 of 1988. There was another writ petition filed by Chemical Kamdar Sangh, being Special Civil Application No.1841 of 1988. Since all these petitions were filed in connection with the recognition of the majority union of the workers of the Company, all these matters were disposed of by a Division Bench of this Court, by a common order dated February 8, 1991. At that time, the Assistant Labour Commissioner, Ahmedabad, made verification of membership of respective unions as on January 1, 1987 and the said Officer passed an order dated November 30, 1987, holding that Tata Chemicals Skilled Mazdoor Sangh was the majority Union (present respondent No.4 herein). The said order was challenged by Chemical Kamdar Sangh by filing Special Civil Application No.1840 of 1988. The said Union, viz., Chemical Kamdar Sangh, also filed another petition, being Special Civil Application No.1841 of 1988, praying that the Ahmedabad Labour Commissioner had no jurisdiction, power or authority to proceed with the verification of membership of the Tata Chemicals Skilled Mazdoor Sangh. 4. In the meanwhile, the Government, at that time, passed an order on February 20, 1988 on the basis of the application submitted by Chemical Kamdar Sangh, and the order passed by the Assistant Labour Commissioner was taken in review. Being aggrieved by the aforesaid order, Tata Chemicals Skilled Mazdoor Sangh filed a petition, being Special Civil Application No.1663 of 1988, a reference of which is made earlier. 5. The Division Bench of this Court, after hearing the parties, came to the conclusion that so far as Special Civil Application No.1663 of 1988 is concerned (which was filed by Tata Chemicals Skilled Mazdoor Sangh, respondent No.4 in this petition), the order dated February 20, 1988 passed by the Government on the application of Chemical Kamdar Sangh is without affording an opportunity of being heard to the said petitioner. The Division Bench also further held that the Government has no power to review the order in question. Since the order was passed without hearing the said petitioner, the said petition was allowed by this Court. So far as Special Civil Application No.1840 of 1988 is concerned, the Division Bench found that the Union was not given appropriate opportunity by the Assistant Labour Commissioner. It is also found by the Division Bench that since appropriate opportunity was not given to the petitioner of that petition, by the Assistant Labour Commissioner and since the finding by the Assistant Labour Commissioner, that representatives of Chemical Kamdar Sangh were not present and did not cooperate with the verification process of their membership, cannot be said to be a correct finding, as, during the relevant days, the Assistant Labour Commissioner was himself on leave, the decision of he Assistant Labour Commissioner is required to be quashed and set aside. Ultimately, the decision of the Assistant Labour Commissioner was set aside by the Division Bench. Under the circumstances, the Division Bench disposed of all these petitions and the Division Bench directed the Assistant Labour Commissioner, Ahmedabad to undertake verification of membership of the respective Unions afresh and within a stipulated time. Accordingly, all the aforesaid petitions were disposed of by the Division Bench by its order dated February 8, 1991. Since the present verification process was undertaken by said Mr.Jadeja, the petitioner was having an apprehension that he may not undertake the said exercise properly and under the circumstances and in view of the aforesaid background of the earlier litigation, the petitioner-Union addressed the aforesaid letter, showing no confidence in the said Mr.Jadeja. The petitioner-Union has made a representation, in detail, to said Mr.Jadeja by the aforesaid letter dated 22nd January, 2002, wherein they have referred to the earlier proceedings undertaken by him in the year 1987. Ultimately, the said Officer Mr.M.V. Jadeja, by his letter dated 25th January, 2002, which is at page 62 of the compilation, informed the Labour Commissioner, Gujarat State, Ahmedabad, requesting him to relieve him from the aforesaid responsibility, as, serious allegations were levelled against him. In the said letter, he requested the Commissioner of Labour to initiate the said proceedings, through Head Office, so that, in future, interest of the workmen is not prejudicially affected. In view of the aforesaid circumstances, ultimately, the said verification process was handed over to Mr.A.K. Patel, Deputy Commissioner of Labour, along with one K.V. Damor, Assistant Labour Commissioner, Ahmedabad and Mr.M.O. Bhatt, Assistant Labour Commissioner, Jamnagar. The re-nomination of the Officers, who were required to undertake this process, was accordingly informed by letter dated 29.4.2002, which is at page 64 of the compilation. In the said letter, it is also mentioned that the particulars which are demanded by the Deputy Labour Commissioner, by his letter dated 27.12.2001, may be handed over personally to the said Officer Mr.A.K. Patel within 10 days by way of personal delivery. It is also mentioned in the said letter that if such particulars are not handed over within the said period, ex parte enquiry will be initiated. It seems that the said letter was sent by Fax to respondent No.7, and it was handed over to the petitioner through the Peon of respondent No.7-Company. The said Mr.A.K. Patel took over the aforesaid task of verification of membership of a particular Union, who represents the employees of respondent No.7-Company. Subsequently, the said Mr.A.K. Patel continued with the proceedings. 6. The petitioner-Union thereafter made certain allegations against the newly appointed Officer and certain grievances were made by their letter dated 1st May, 2002. However, the petitioner-Company had not objected to proceedings being continued by the said Mr.A.K. Patel. The petitioner-Union wrote a letter dated 9th May, 2002, informing Mr.Patel and other Officers, about the telephonic conversation which had taken place between Mr.A.K. Patel and the petitioner-Union, wherein it was stated that in view of the disturbed situation in Ahmedabad, the record should not be brought to Ahmedabad, and a prayer was made that, in view of some marriage ceremony in the family of the General Secretary of the petitioner-Union on 15.5.2002, the proposed visit, which was to be made on 16.5.2002, may be adjourned to any other suitable date. The Deputy Commissioner of Labour thereafter, by his letter dated 9.5.2002, informed the petitioner-Union that whatever particulars which have been called for by letter dated 29th April, 2002 may be sent within 10 days. The petitioner-Union, thereafter, requested to give some time by their letter dated 10th May, 2002. Thereafter, by letter dated 13th May, 2002, Mr.A.K. Patel, Deputy Commissioner of Labour, wrote a letter to the Government Labour Officer, Jamnagar, informing him that the Officers will be visiting Tata Chemicals, Mithapur, Jamnagar, on 16th May, 2002, and asked the Government Labour Officer to inform the concerned Labour Unions, accordingly. The petitioner-Union, thereafter, submitted necessary documents to Mr.A.K.Patel, along with the letter dated 16th May, 2002, which is produced at page 82 of the compilation. The petitioner-Union also wrote another letter, dated 17th May, 2002, to the Deputy Commissioner of Labour Mr.A.K. Patel, informing him that in a joint meeting held on 16th May, 2002 in the premises of Tata Chemicals, one Mr.M.J. Patel and Mr.Kirit Barot had remained present but they refused to sign the proceedings, and they clearly informed Mr.Patel that they are not willing to take part in the verification process. It is requested that since the said Unions had not taken part in the verification process, their claim may not be taken into consideration. There are so many other letters written by the petitioner from time to time, which are all produced in the compilation. In some of the letters, the petitioner also informed said Mr.Jadeja that the proceedings undertaken are against the Code of Discipline and that there is a breach of procedure provided under the said Code of Discipline. 7. In the meanwhile, the petitioner also wrote a detailed letter on 10th July, 2002 to Mr.A.K. Patel, Deputy Commissioner of Labour, in which it has given the history of the earlier proceedings, which were initiated before this Court, etc. In the said letter, it is pointed out that on 17th May, 2002, the record of petitioner-Union was verified fully (i.e. the said verification was 100%) and the said procedure was over on 17th May, 2002 at 11.30 p.m. It is pointed out in the said letter that since other Unions had not cooperated in the enquiry, the application of the other Unions for giving recognition should be rejected promptly and the proceedings may be dropped immediately. The Deputy Commissioner of Labour thereafter, on 10th July, 2002, wrote a letter to all the Unions, informing that after undertaking preliminary stage verification of the membership of the petitioner-Union, it is necessary to undertake further proceedings, as provided under the Code of Discipline. It is mentioned in the said letter that necessary provisions have been made in order to invite objections and if any Union wants to send any objection, after going through the record, the same may be sent within 10 days. It is mentioned in the said letter that, prima facie, it is found that so many employees are members of more than one Union. The Unions were accordingly informed whether they were willing to undergo the process in camera or through any alternative arrangement. For that purpose, they were asked to give their reply. The petitioner-Union, thereafter, wrote a letter to the Deputy Commissioner on 16.7.2002, informing him that so far as the letter dated 10.7.2002 is concerned, the same is given during the Mithapur Camp. It is mentioned that, in the scrutinised list, the strength of the Chemical Kamdar Sangh (the petitioner Union) is mentioned as 1466. As against that, on earlier occasion, on 16th May, 2002, during the Mithapur camp, for the period between 1.6.2001 and 30.11.2001, the strength of the Members of the Union was 1651. By the said letter, the Deputy Commissioner was asked as to why the name of 185 members of the petitioner-Union are not shown in the scrutinised list. He was requested to show as to why 185 members have not been shown in the aforesaid scrutinised list. However, by another latter dated 27.5.2002, the petitioner-Union informed Mr.A.K. Patel that their total strength should be taken as 1457+38, i.e. 1495. The petitioner-Union, in the meanwhile, also wrote another letter to the Deputy Commissioner, informing that the contesting Unions had never remained present earlier and have never cooperated in the verification process. They have also made some grievance about some writing on the black board at the main gate of the company. 8. On behalf of the President of respondent No.5-Union, a letter dated 14th July, 2002 was written, wherein it is mentioned that even the office bearers of the petitioner-Union are also shown as members of the respondent No.4-Union. By another letter dated 25th July, 2002, the petitioner-Union informed the Deputy Commissioner of Labour, objecting inclusion of certain members of their Union as belonging to respondent No.4-Union in their register. The names of such employees are also mentioned at page 135 of the compilation. 9. The grievance of the petitioner-Union before the Deputy Commissioner of Labour was that there are certain names, which could not have been included as belonging to respondent No.4-Union and they raised serious dispute about the total number of members belonging to respondent No.4-Union. The Deputy Commissioner of Labour thereafter conducted personal verification of all the concerned employees, on whose behalf, objections were raised by either Union, on 7th and 8th August, 2002, and after completing the said in camera verification, ultimately, recommended to the management to give recognition to respondent No.4-Union by the aforesaid impugned letter / communication at Annexure 'A' to the petition. The said procedure adopted by the Deputy Commissioner of Labour is challenged by way of this petition on various grounds. 10. The grievance of the petitioner-Union is that, from day one, the procedure prescribed in the Code of Discipline is given a goby by Mr.A.K. Patel, Deputy Labour Commissioner. The main grievance of the petitioner-Union is that on 16th May, 2002, the Union was compelled to produce its record, even though the stipulated time of 10 days was not over. It is also the grievance of the petitioner-Union that even though the original applicant Union as well as respondent No.4-Union had not cooperated in the proceedings, yet, their claim was allowed to be processed and was taken into consideration. They have also challenged the procedure adopted by the Officer for personal verification by way of in camera procedure. It is also the grievance of the petitioner-Union that, on the relevant day, during the Mithapur Camp, record of other Unions were not verified and, subsequently, their record was verified at Ahmedabad. The petitioner, accordingly, even wrote a letter to the Management, requesting it not to give recognition to respondent No.4-Union, as they would like to challenge the decision of the Deputy Commissioner of Labour by way of appropriate proceedings in the court of law. The in camera procedure adopted by the Officer is also challenged on the ground that there is no in camera procedure in the Code of Discipline to call each and every workman for personal interrogation and only sample checking was required to be done. According to the petitioner-Union, therefore, the Deputy Commissioner of Labour has violated the Code of Discipline in toto and from the beginning, the entire Code of Discipline is given a goby and under the circumstances, it is prayed that the decision of respondent No.1, in recommending respondent No.4-Union for giving recognition, should be set aside and respondent No.1 may be directed to undertake de novo proceedings for verification of the membership of the respective Unions. 11. During the course of the hearing, it was submitted by the learned Advocate for the petitioner-Union that some members were wrongly shown. Even some office bearers of the petitioner-Union are shown as members of respondent No.4-Union. The petitioner-Union has accordingly challenged the decision of respondent No.1 in recommending respondent No.4-Union for recognition on the ground that from the very beginning, the Code of Discipline is not followed and a soft treatment was given to respondent No.4-Union by the verifying Officer, who has undertaken the process of verification. During the course of the hearing, Mr.Clerk has submitted, in detail, the so-called violation on the part of the Officer from the stage of calling the Unions to produce their record, checking the records and registers of the Union, giving some time to respondent No.4-Union for producing their documents and adjourning the enquiry by way of giving muster roll of the company to respondent No.4-Union as well as the last stage in camera procedure adopted by respondent No.4 for personally verifying the strength of the workmen. The said procedure is attacked, in detail, by the petitioner-Union and, ultimately, it is prayed that respondent No.1 may be directed to initiate de novo enquiry for verifying the membership of the concerned Unions. 12. The petition is resisted by respondent No.4-Union and on behalf of the said Union, Dr.Sinha, learned Advocate, submitted that the Code of Discipline is not having any statutory force. He submitted that on earlier occasion, the Division Bench had allowed the petition of the present Union on the ground that appropriate opportunity was not given by the concerned Officer and that the Union was not allowed to produce the documents and that the order was passed ex parte. He submitted that the concerned Officer has followed the Code of Discipline and reasonable opportunity is given to all the Unions to produce the record. It is submitted that the petitioner-Union has always tried to obstruct the verification process and its intention was only to delay the verification process. It is submitted that the Deputy Labour Commissioner has given fair opportunity to all the Unions and simply because, on request of either Union, if the enquiry is adjourned for producing the documents or if muster rolls of the Company are given to the concerned Union, it cannot be said that the Officer has acted illegally. On the contrary, the Officer has tried to comply with the principles of natural justice to the fullest extent. It is submitted by Dr.Sinha that when so many objections were lodged regarding inclusion of the name of a particular workman, instead of random sampling, if the Officer has called them personally for personal verification in camera, it cannot be said that he has committed any illegality or irregularity in following the said procedure. He submitted that it is a more scientific way of verification, by calling the workmen who are in the list of objections. He submitted that following the said procedure, no prejudice is caused to the petitioner-Union, as, ultimately, truth has come out. He further submitted that whether a particular person should have been included in the list of the petitioner-Union or in any other Union, can never be considered by this Court in a petition filed under Article 226 of the Constitution of India, as, it is in the realm of appreciation of evidence, or, in any case, it is a highly disputed question of fact, which cannot be adjudicated by this Court invoking its extraordinary jurisdiction under Article 226 of the Constitution. Mr.Clerk, at one stage, submitted that this Court may call for the record and go through the entire record to find out the exact membership of each of the Unions. However, in my view, it is not desirable that the Court itself should go through each and every documentary evidence, as, that duty is assigned to respondent No.1 and this Court is not required to undertake that exercise. In fact, the said argument of Mr.Clerk itself is suggestive of the fact that highly disputed questions of fact are involved in this matter. 13. On behalf of the State, affidavit-in-reply is filed, starting from page 203 of the compilation, and an additional affidavit-in-reply is also filed. It is stated that the procedure conducted by the Officer is in consonance with the Code of Discipline. Relevant part of the affidavit-in-reply is as under :- " ... ... ... 8. I say that it is made clear at this juncture that verification was done in accordance with law. I say that initially an application was tendered by the Union before the Deputy Labour Commissioner, Rajkot for the purpose of verification. I say that subsequently the petitioner-union find fault, the Deputy Labour Commissioner, Rajkot on request being made to the Labour Commissioner and in view of the communication dated 22nd April, 2002, the Labour Commissioner had entrusted the said exercise to the deponent and Shri K.V. Damor and other officers. I say that accordingly the entire record lying at the Deputy Labour Commissioner's Office, Rajkot were transferred to the Deputy Labour Commissioner, Ahmedabad. 9. I say that thereafter on 9th May, 2002, the Deputy Labour Commissioner, Ahmedabad, informed all the Unions to submit their remarks and further details pertaining to membership. I say that all the Unions except petitioner-Union did not submit the errors pertaining to the membership and therefore the deponent personally went to TATA Chemicals along with staff to collect the records and accordingly on 16th May, 2002 the petitioner-union handed over the records to the Deputy Labour Commissioner, Ahmedabad. 10. I say that on 17th May, 2002, at Mittapur Office of the Labour Department, further proceedings were commenced and membership verification was carried out. I say that all the Unions remained present before the authority. However, two Unions namely 1) Chemical Skilled Mazdoor Sangh and TATA Chemicals Employees Unions refused to disclose the membership in presence of petitioner-union and informed the authority that they will disclose membership at Ahmedabad Office. I say that these two unions have not complied with the direction of the Deputy Labour Commissioner for disclosing the membership. I say that these two unions took technical plea in writing that they wanted to go through copy of the muster roll of the company before disclosing membership. 11. I say that thereafter on 20th May, 2002, at Mitapur Office of the Labour Department, copies of muster roll were provided to all the unions including the above referred two unions. I say that thereafter objecting unions disclosed membership at Ahmedabad Office. I say that in view of the provisions of Code of Discipline, if the said one member is found in more than one union, then list of members to that effect is required to be provided to