VALLABHVIDYANAGAR MAZDOOR UNION v. STATE — 1998 DIGILAW 475 (GUJ)

S. D. PANDIT, J. ( 1 ) ). Rule. In view of facts and circumstances of these three petitions they are taken for final hearing with the consent of learned Advocates for both the sides. ( 2 ) ). The three petitions are pertaining to one and the same question of the law. Therefore, they are heard together in view of involvement of common question of law and in the interest of the parties and with consent of all the parties. I have permitted besides the learned Advocates for the parties in these three petitions, Mr. P;chidambaram, Working President of Gujarat Mazdoor Sangh and Mr. H. K. Rathod,. teamed Advocate representing Gujarat State Road Transport Corporation karmachari Sangh and Other Unions to address this Court. ( 3 ) ). The Special Civil Application No. 738 of 1998 is filed by Vallabhvidyanagar mazdoor Union, seeking writ of mandamus and to direct the respondents to hold an election in Amul Dairy-respondent No. 2 for the purpose of giving the recognition to the petitioner-Union. It is claim of the petitioner that the petitioner-Union is registered under Trade Unions Act, 1926 and it has got enrolling of the workmen of respondent No. 2 and more than 50% of the workmen of respondent No. 2 are the members of the said Union and therefore, the petitioners Union is entitled to get the status of recognised Union. This Union has made representation to the respondent No. 1 by letter dated 16-6-1997 to give such recognition. Thereafter, as desired by the respondent No. 1 - Deputy Commissioner of Labour, all the information sought by him were supplied. But, even in spite of the same, no recognition is given to the petitioner. But by letter dated 5-11-1997, petitioner is informed that besides the petitioner-Union, other four Unions are operating in the said employer, and employer does not wish to record approval to any of the Unions. According to the petitioner, the claim of the respondent No. 2 that besides the petitioner, there are four other Unions operating there is false. Petitioner, therefore, seeks a direction to direct the respondent Nos. 1 and 2 to hold an election in order to find out as who is having the majority of the workmen and then to issue the recognition of a recognised Union to the petitioner. ( 4 ) ). Petitioner, therefore, seeks a direction to direct the respondent Nos. 1 and 2 to hold an election in order to find out as who is having the majority of the workmen and then to issue the recognition of a recognised Union to the petitioner. ( 4 ) ). The claim of the petitioner is resisted by the respondent No. 2, in this Civil application No. 738 of 1998. It is contended that the petitioner has neither any fundamental right nor any statutory right to get a recognition. There is no legal obligation on the respondent No. 1 to hold an election and to see which of the labour unions having majority and the respondent No. 2 could not be compelled to give recognition to either the petitioner - Union or any other Union. Thus, it is contended that no petition under Art. 226 could be entertained for giving the recognition to an Union. ( 5 ) ). The Special Civil Application No. 4773 of 1998 and Special Civil Application no. 4810 of 1998 are filed respectively by the employer and the recognised Union of the Baroda Rayon Corporation Ltd. , to challenge the order issued by the Deputy commissioner of Labour on 17-6-1998, by which, the petitioner in petition No. 4773 of 1998, namely, the Baroda Rayon Corporation Ltd. , is directed to hold an election in order to find out which of the two Unions, namely, respondent No. 2 - Baroda rayon Corporation Employees Union and respondent No. 3 - Akhil Bharatiya Udyog kamdar Sangh are having the majority of the workmen working with the petitioner. , it is contended by the petitioner that neither the Industrial Disputes Act nor any other Act empower the Labour Commissioner or the Deputy Labour Commissioner to issue such a direction to the employer. The Labour Commissioner or the Deputy labour Commissioner has no statutory right to issue such a direction. As the said direction is illegal and is not authorised by any statute, the action of the Deputy labour Commissioner in writing the said letter should be declared illegal and the same be quashed and set aside. The Special Civil Application No. 4810 of 1998 is filed by the Baroda Rayon Corporation Employees Union-respondent No. 2 in special Civil Application No. 4773 of 1998 raising the same and similar contention as raised in Special Civil Application No. 4773 of 1998. The Special Civil Application No. 4810 of 1998 is filed by the Baroda Rayon Corporation Employees Union-respondent No. 2 in special Civil Application No. 4773 of 1998 raising the same and similar contention as raised in Special Civil Application No. 4773 of 1998. This petitioner in Petition no. 4810 of 1998 is the recognised Union of the petitioner in Petition No. 4773 of 1998. ( 6 ) ). The respondent No. 3 in this petition No. 4773 of 1998 who is also respondent No. 3 in Special Civil Application No. 4810 of 1998, namely, Akhil Bharatiya Udhyog Kamdar Sangh has contended that under the "code of Discipline in Industry", the Labour Commissioner/deputy Labour Commissioner is entitled to write such a letter to the industry. It is contended that in order to achieve industrial peace, the procedure laid down in "code of Discipline in Industry" must be followed and the Union which is having majority of the workmen must be given recognition by the industry. It is submitted that the "code of Discipline in Industry" mentioned in the National Commission of Labour has the force of the statute, and therefore, the procedure and principles laid down in "code of Discipline in industry" must be enforced. It is contended by Mr. T. R. Mishra, who is representing the respondent No. 3 before me, stated that there must be recognition of an Union by an industry because whenever the industry wants to have dialogue for the purpose of settling the industrial dispute, the said dialogue could be with only a recognised union. Similarly, if any settlement of an industrial dispute is to take place, it must take place between the industry and the recognised Union of an industry. Therefore, in these circumstances, the action of the respondent No. 1 in directing the industry to hold an election in order to find out which of the two Unions is having majority is quite proper and just. ( 7 ) ). At the outset, it must be stated neither Shri T. R. Mishra nor Mr. V. S. Vasavada, the learned Advocates representing the two Unions, namely, and respectively akhil Bharatiya Udhyog Kamdar Sangh and Vallabhvidyanagar Mazdoor Union was in the position to point out any provision under Industrial Disputes Act. ( 7 ) ). At the outset, it must be stated neither Shri T. R. Mishra nor Mr. V. S. Vasavada, the learned Advocates representing the two Unions, namely, and respectively akhil Bharatiya Udhyog Kamdar Sangh and Vallabhvidyanagar Mazdoor Union was in the position to point out any provision under Industrial Disputes Act. 1947 or under any other Act which lays down that the industry must give recognition to atleast one Union of the workmen working in the industry. Similarly, Mr. P. Chidambaram was also not in a position to point out the same. Similarly, I had asked all of them to point the provisions of any Act or any rules framed under any Act either by the Central Government or the State Government which creates a statutory duty for or obligation on the Labour Commissioner/deputy Labour commissioner or any officer working under them to give recognition to an Union of the workmen. ( 8 ) ). No doubt both the learned Advocates have drawn my attention to Clause 1 (2), (15) and 11 (3) of the Fifth Schedule of the Industrial Disputes Act 1947. The Sec. 2 (ra) of the Industrial Disputes Act defines that "unfair labour practice" means any of the practices specified in Fifth Schedule. Fifth Schedule only enlists the practices which would amount to "unfair labour practice". Bearing this aspect in mind, one must read and consider those provisions which are referred by both the counsels. They are as under ;1. On the part of employers and Trade Unions of employers. 2. To dominate, interfere with or contribute support, financial or otherwise to any Trade Union, that to say : (B) an employer showing partiality or granting favour to one of several trade Unions attempting to organize his workmen or to its members, where such a Trade Union is not recognised Trade Union. 15. To refuse to bargain collectively in good faith with the recognised trade Union. II. On part of workmen and Trade Union of workmen. 3. For a recognised Union to refuse to bargain collectively in good faith with the employer. From the above quoted provisions it is not at all possible to hold that an industry must give recognition to a Union of its workmen. II. On part of workmen and Trade Union of workmen. 3. For a recognised Union to refuse to bargain collectively in good faith with the employer. From the above quoted provisions it is not at all possible to hold that an industry must give recognition to a Union of its workmen. On the contrary, if the provisions of I 2 (b) are considered then that provision accepts that in an industry there may be more than one Union of its workmen and if none of them is not recognised then all of them must be treated equally. If the provisions of other two clauses quoted above are considered then it would be quite clear that in case if one Union out of the Unions of workmen is recognised by an industry then it" one out of the industry and Union of workmen refuses to bargain collectively in good faith with another then it will amount to unfair labour practice. ( 9 ) ). If the above provisions are considered then it would be quite clear it is for an industry itself to take its own decision as to whether a Union of workmen is to be given recognition by an industry or not. If an industry happened to give recognition then whenever it intends to have a dialogue and negotiations with the workmen and bargain with them- it must be through that recognised Union. It must be also stated here that it is also fairly admitted before me that in an industry there could be more than one recognised Union. There is no statutory provision to give recognition to an Union of workmen and that too for only one Union. It is also necessary to refer to provisions of Sec. 18 of Industrial Disputes Act. Sub-sec. (1) of Sec. 18 lays down that in case of settlement otherwise than in course of conciliation proceeding shall be binding on the parties to the agreement. Therefore. even in case of recognised Union the settlement between an industry and a recognised union will be binding only on the members of that Union. Even in case of settlement between the recognised Union and an industry on account of any arbitration proceedings becomes binding on the non-members of the recognised Union as they are served with the notification under sub-sec. (3a) of Sec. 10a and are given an opportunity of presenting their case. Even in case of settlement between the recognised Union and an industry on account of any arbitration proceedings becomes binding on the non-members of the recognised Union as they are served with the notification under sub-sec. (3a) of Sec. 10a and are given an opportunity of presenting their case. In any settlement other than before an arbitrator. it will be binding even in case of taking place during reconciliation proceeding on the parties to the industrial dispute. On account of the recognition of an Union an obligation is created in favour of an industry as well as an Union that it cannot refuse to bargain collectively and if there happened to be a refusal it will amount to an unfair labour practice. No other benefit or right is created on account of giving recognition. ( 10 ) ). Mr. Vasavada, learned Advocate for the petitioner in Special Civil Application no. 738 of 1998 submitted that the claim of the petitioner is based on the "code of Discipline in Industry" evolved in 16th Sessions of the Indian Labour Conference. He further submitted that the said "code of Discipline" must be treated and recognised as a statutory provision. This view of Mr. Vasavada is endorsed and supported by Mr. T. R. Mishra as well as Mr. P. Chidambaram. As against this, Mr. Patel, Senior Counsel appearing for the respondent No. 2 in Special Civil Application no. 4810 of 1998. Mr. K. M. Patel. Advocate for the petitioner in S. C. A. No. 4773 of 1998, Mr. Shahani, learned Advocate appearing for petitioner in Special Civil application No. 4810 of 1998 and Mr. H. K. Rathod submitted that the "code of discipline" has no statutory value and no recognition could be given to the same by the Court and on the basis of "code of Discipline" nobody could be given any relief by this Court. Mr. Vasavada has cited before me the decision of Division Bench of Madras High Court in the case of Tamil Nadu Electricity Board v. Tamil Nadu electricity Board Accounts and Executive Staff Union, 1980 (2) LLJ 440 . In this case, there is reference to two earlier decisions of Division Benches of Calcutta High court in A. C. Mukherjee and Ors. v. Union of India and Ors. In this case, there is reference to two earlier decisions of Division Benches of Calcutta High court in A. C. Mukherjee and Ors. v. Union of India and Ors. , 1972 (2) LLJ 297 and of Kerala High Court in M. A. David v. Kerala State Electricity Board, 1973 (2) llj 466 in which it has been held that the Code of Discipline is not a statutory rule and violation of the said Code will not give the justification to entertain a petition of Art. 226 of the Constitution. But the Division Bench of the Madras High court held that in case before the Calcutta High Court the point was not decided in the judgment and the matter went by admission. Where as regards the case before the Kerala High Court, it has been held by the Division Bench of Madras High Court that the decision of Kerala High Court had no application on facts to the case before them. No doubt, the Division Bench of Madras High Court has held that writ under art. 226 of the Constitution of India by an Union whose recognition is withdrawn is maintainable as the said action was taken without hearing the Union and without assigning any reasons for de-recognition. But it has been nowhere laid down in this case that "the Code of Discipline" has got statutory value or is a statutory provision. On the contrary, it has been held that it is not a statutory provision. That would be quite clear from the following observations in para No. 6 on page 442 :"admittedly, there is no statutory provision in this case dealing with the question of recognition or de-recognition. Equally admittedly the Code of Discipline in Industry is not statutory. "the writ was held maintainable as the action of de-recognition was in violation the principles of Natural Justice. Thus, the said case is not of any help to Mr. Vasavadas client as well as Mr. T. R. Mishras client. . ( 11 ) ). Now, apart from the above referred decisions of Division Benches of calcutta High Court, Kerala High Court and Madras High Court, the Division Bench of this High Court in the unreported case of Amul Dairy Karmachari Parishad and anr. v. Commissioner of Labour and Ors. Vasavadas client as well as Mr. T. R. Mishras client. . ( 11 ) ). Now, apart from the above referred decisions of Division Benches of calcutta High Court, Kerala High Court and Madras High Court, the Division Bench of this High Court in the unreported case of Amul Dairy Karmachari Parishad and anr. v. Commissioner of Labour and Ors. , Special Civil Application No. 7481 of 1991 decided on 22/07/1992 has held that a writ petition under Art. 226 to direct the Labour Commissioner to conduct verification of the membership of a Union in order to get recognition is not maintainable. There is also a reported judgment of a single Judge of Bombay High Court in AIR Corporation Employees Union v. G. B. Bhide, 40 FJR 317 on the same issue. In this case after referring the decision of the Apex Court in G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753 and state of Assam v. Ajit Kumar Sharma, AIR 1965 SC 1196 . the learned single Judge has observed as under :"these decisionsleave no room for doubt that the petitioners in the present case have no legal right conferred upon them as a result of Code of Discipline evolved at the 16th Sessions of Indian Labour Conference, or the "consensus of opinion" at the 22nd Sessions of that Conference for enforcement of which they can maintain a petition under Art. 226. " ( 12 ) ). Mr. Vasavada has also cited before me the case of Food Corporation of India Staff Association v. Food Corporation of India, AIR 1995 SC 1344 . But the said case has no application to the facts before me. In that case the Industry/employer and the workers Unions had agreed to assess the representative character of Trade unions and had submitted before the Honble Supreme Court to lay down the procedure for holding elections for the purpose of said assessment. ( 13 ) ). Thus, in view of all above discussions and the above referred decisions of various High Courts including our own High Court, the Labour Commissioner cannot consider and decide the question of giving recognition to Trade Union and cannot issue direction to the industry to hold election for the purpose of assessing the representative capacity of the Trade Unions. Thus, in view of all above discussions and the above referred decisions of various High Courts including our own High Court, the Labour Commissioner cannot consider and decide the question of giving recognition to Trade Union and cannot issue direction to the industry to hold election for the purpose of assessing the representative capacity of the Trade Unions. However, if the Industry/employer requests the Labour Commissioner that if/he wants to give recognition to that Trade union which is having the majority membership and that the same, i. e. , the assessment of membership should be assessed by him, then he should hold the election by following the principles laid down in above cited Food Corporation of india Staff Association v. Food Corporation of India, AIR 1995 SC 1344 . It must be also laid down that when any Trade Union informs the Labour Commissioner about its birth and claims of having the majority of the membership he should inform the Industry/employer to take note of it and ask whether the Industry/employer wishes to give recognition or not. On getting the reply from the Industry/employer he should inform about the reply to the Trade Union. If the Labour Commissioner/ deputy Labour Commissioner follows such a procedure then the Industry/employer whenever wants to have a settlement or dialogue it will have to call such Union to have the settlement binding on all. ( 14 ) ). Thus, I hold that the letter issued by the Deputy Commissioner of Labour dated 17-6-1968 of Annexure E in Special Civil Application No. 4773 of 1998 is illegal and invalid and it is quashed and set aside. Thus, both petition Nos. Special Civil Application No. 4773 of 1998 and Special Civil Application No. 4810 of 1998 stand allowed. The prayer sought in Petition S. C. A. No. 738/1998 is not tenable in law and hence the same petition must be dismissed. In the circumstances of the case, I direct the parties in all three petitions to bear their respective costs. Rules in Special Civil Application No. 4773 of 1998 and Special Civil Application No. 4810 of 1998 are made absolute. Rule in Special Civil Application No. 738 of 1998 is discharged. Copy of this judgment be kept in Special Civil Application No. 4810 of 1998 as well as in Special Civil Application No. 4773 of 1998. .