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2015 DIGILAW 181 (ORI)

Steel Employees Association v. Union of India

2015-03-18

C.R.DASH

body2015
Judgment : C.R. Dash, J. The petitioners are two of the Labour Unions functioning under Rourkela Steel Plant (SAIL, Rourkela). They have impugned the letter dated 26.03.2014 issued by the Deputy Chief Labour Commissioner (Central), Bhubaneswar (opp. party no.3) initiating the process of verification of membership of Trade Unions through secret ballot so far as Rourkela Steel Plant is concerned. 2. Sri Nitya Kishore Mohanty, General Secretary of opposite party no.2 Labour Union is present in person. He represents both petitioner nos.1 & 2. Mr. N. K. Mishra, learned senior counsel appearing for opposite party no.6, Mr. A.K. Bose, learned Assistant Solicitor General appearing for opposite party nos.1, 2, 3 & 4 and Mr. Jagannath Pattnaik, learned senior counsel appearing for opposite party no.5 – Rourkela Steel Plant are also present. 3. Heard Mr. Nitya Kishore Mohanty, General Secretary of the Labour Union (petitioner no.2) and learned counsels appearing for the parties. 4. The verification process for recognition of Trade Union was initiated in the present case on 26.03.2014 vide Annexure-1. The election through secret ballot was scheduled to be held on 15.10.2014. On 25.07.2014 the petitioners, who are two Labour Unions operating in Rourkela Steel Plant, filed the present writ petition with a prayer to quash the impugned letter dated 26.03.2014 issued by the Chief Labour Commissioner (Central), Orissa. Opposite party no.4 is initiating the process of verification of membership of the Unions on the ground that the election through secret ballot is scheduled to be held in absence of any rules framed by the Central Government. 5. Vide order dated 05.08.2014 passed in Misc. Case No.12271 of 2014, this Court directed all the Labour Unions including the present petitioners to participate in the verification process initiated vide Annexure-1, but it was further directed that no final order shall be passed by the authority concerned regarding election without leave of the Court. In view of the aforesaid order, the election through secret ballot has already been held, but result has not yet been published. 6. The previous elections/verification process of members of the Union were being conducted by the State under the provisions of the Rules for verification of membership and recognition of Trade Union Rules 1994, as the State of Orissa was the appropriate Government. 6. The previous elections/verification process of members of the Union were being conducted by the State under the provisions of the Rules for verification of membership and recognition of Trade Union Rules 1994, as the State of Orissa was the appropriate Government. The previous elections through secret ballot in Rourkela Steel Plant for recognition of Union after 1994 has had been held under the aforesaid Rules of 1994. I feel expedient here to find out the history of the procedure governing the process of verification of membership of the Trade Unions. The process of verification of membership of Trade Union originally started with formulation of the Code of Discipline in the 15th Indian Labour Conference in the year 1957. Said Code of Discipline was adopted in the 16th Indian Labour Conference in April, 1958. After that, the Code of Discipline was finalized in a meeting of representatives of the Management and the Unions in May, 1958. The Code of Discipline governing the process of verification of membership of Trade Unions came into force with effect from 01.07.1958 with due agreement by the Management and the Unions. Said Code of Discipline was drawn / approved in consultation with the federation of employers and the federation of Trade Unions as operating in the field during that time, which was the highest policy-making body on the matter of framing of policy for maintaining healthy industrial relationship in the country. 7. So far as the State of Orissa is concerned, before 1994 Rules came into force, the aforesaid Code of Discipline adopted at the 16th session of Indian Labour Conference held in 1958 was being followed for the process of verification of the membership of the Trade Unions by the State of Orissa. In the aforesaid 1994 Rules, however, Appendix-IV of the Code of Discipline was substituted, other matters of the Code of Discipline remaining the same. Subsequently, by amendment of the I.D. Act in 2010, the appropriate Government in respect of the Rourkela Steel Plant became the Union of India and the 1994 Rules, under which the election through secret ballot was being held in the Rourkela Steel Plant for the Unions came to be substituted by the Code of Discipline in entirety including the Appendix. 8. 8. On the basis of the Code of Discipline of 1958, the Government of India in the Ministry of Labour has formulated executive instructions on 18.12.1980 and 18.04.2011 on the subject of determination of relative strength of the Union operating in an Establishment / Industry in local area under the central sphere by secret ballot. Number of Circulars have also been issued by the appropriate Government to govern the field. 9. Hon’ble Supreme Court in the case of Food Corporation of India Staff Union vrs. Food Corporation of India and others, AIR 1995 SC 1344 , has also settled the principle that process of verification should be carried out through secret ballot. Hon’ble Supreme Court has also laid down the norms of the procedure to be followed for assessing the representative character of the Trade Unions through secret ballot. The Code of Discipline of 1958 and the aforesaid executive instruction of 1980 and 2011 along with different Circulars issued by the appropriate government in the meantime continue to govern the field so far as verification of members of the Union through secret ballot is concerned and the Unions operating in the Rourkela Steel Plant are no exceptions to the aforesaid Code of Discipline, Executive Instructions and Circulars in absence of any statutory rule on the subject governing the field. 10. The verification process, vide letter dated 26.03.2014 under Annexure-1 has been initiated in obedience to the direction of this Court in W.P. (C) No.25986 of 2013 filed by Rourkela Ispat Karkhana Karmachari Sangha (opp. party no.6) for a direction to initiate and hold verification process. The grounds raised by Mr. Nitya Kishore Mohanty, representative of the petitioners, in course of hearing are not found to be pleaded in the writ petition. The writ petition has been filed with a prayer to quash the letter dated 26.03.2014 vide Annexure-1 initiating the verification process. The election having been over by now, the writ petition, if viewed otherwise, has also become infructuous. 11. The present petitioners have raised three points to impugn the verification process and the election through secret ballot, viz. (i) Absence of rules for election through secret ballot so far as the central sphere is concerned; (ii) Persons, who are not members of the Trade Unions, have been allowed to cast vote; and (iii) Relative strength of the Union has not been determined. 12. (i) Absence of rules for election through secret ballot so far as the central sphere is concerned; (ii) Persons, who are not members of the Trade Unions, have been allowed to cast vote; and (iii) Relative strength of the Union has not been determined. 12. So far as the first point, i.e. point no.(i) is concerned, as discussed supra in chronology, the Code of Discipline in absence of rule has been accepted by all the Trade Unions to be the guiding factors so far as the election through secret ballot for verification of membership of Unions and for recognition of Union is concerned, and no election can be kept in abeyance awaiting a rule in this regard to be framed by the appropriate Government. So far as point no.(iii) is concerned, relative strength of the Union can be determined only after publication of the result of the election through secret ballot, and without publication of result such relative strength cannot be determined before-hand. So far as the second point, i.e. point no.(ii) regarding casting of vote by nonmembers of the Trade Unions is concerned, the executive instruction of 1980 in paragraph-9 provides thus :- “In case any objections are raised by any of the representatives of the participating unions, and in the opinion of the Returning Officer these objections are minor / flimsy objections and do not merit any examination at higher levels, he may declare the results and send a report to the CLC. However, the objections raised are important and need examination / consideration at higher level, the Returning Officer will withhold the declaration of the results and communicate the objections raised by the union(s) together with his comments to the CLC. The CLC will thereupon enquire into the matter and furnish a report to the Ministry giving his observations / comments in this regard for decision of the Ministry.” In the light of the aforesaid guidelines, if the submission advanced by Mr. Nitya Kishore Mohanty is examined, it is found that Sri Mohanty had raised certain objections before the Regional Labour Commissioner (Central) – cum-Returning Officer on 22.08.2014. The objections are seven in numbers, which include absence of criteria and procedure and some suggestions regarding terms of the recognized Unions, etc. Nitya Kishore Mohanty is examined, it is found that Sri Mohanty had raised certain objections before the Regional Labour Commissioner (Central) – cum-Returning Officer on 22.08.2014. The objections are seven in numbers, which include absence of criteria and procedure and some suggestions regarding terms of the recognized Unions, etc. In point no.(ii) it was urged that only the workers who are members of the Trade Unions as on 01.09.2014 should be enrolled as voters to cast their votes in secret ballot in the election of 2014 to be held in Rourkela Steel Plant as per the order of the Hon’ble High Court of Orissa in Birla Tyres’ case. Sans law, it is common knowledge that the verification process and election through secret ballot is conducted for recognition of a Trade Union. In such process the obvious participants are the members of the Trade Unions. The members of all the Trade Unions are the valid voters. 13. Mr. Nitya Kishore Mohanty, in course of submission, elaborated his contention by submitting that some employees of the Rourkela Steel Plant, who are not members of the Trade Unions, have been allowed to vote in the election. But, from the objection raised on 22.08.2014 nothing is found out that any specific objection to that effect was raised before the Returning Officer. There is no scrap of paper to substantiate the contention that in course of the verification process at any point of time any specific objection at appropriate time was raised regarding permitting the non-voters to vote in the election. 14. Mr. A.K. Bose, learned Assistant Solicitor General appearing for the Returning Officer also submits that there is nothing on record to substantiate the contention of the petitioner to the effect that objection was raised before the election officer at appropriate time on the aforesaid aspect. 15. Taking into consideration the aforesaid facts and the provisions in the guidelines, I feel constrained to say that the objection raised by the petitioner on 22.08.2014 on the aforesaid aspect is too spacious to be accepted. The petitioner, if so advised, may raise all the aforesaid points at appropriate time before the next election. 16. In view of my discussions supra and taking into consideration the fact that the submission advanced by the petitioners have failed, the writ petition is dismissed on merit. The petitioner, if so advised, may raise all the aforesaid points at appropriate time before the next election. 16. In view of my discussions supra and taking into consideration the fact that the submission advanced by the petitioners have failed, the writ petition is dismissed on merit. The verification process being over with the election through secret ballot, a democratic process has come to an end for recognition of the Union and the result of the election therefore be declared forthwith. 17. Before parting with the order, referring to the decision of the Hon’ble Supreme Court in the case of Food Corporation of India Staff Union vrs. Food Corporation of India and others, AIR 1995 SC 1344 , I deem it expedient to say that a recognized Trade Union being the principal representative of the workers to bargain with the Management for the benefit and upkeep of the workers, the process for verification of membership of the Union and recognition of Union should be kept in place for discipline in the matter and to keep this sphere free of ambiguity. In that view of the matter, the Union of India in the appropriate Ministry may take proper step regarding framing of a Rule to govern and operate in the field. 18. The writ petition is accordingly disposed of. 19. A free copy of this judgment be handed over to Mr. A.K. Bose, learned Asst. Solicitor General, as prayed for.