General
Secretary Rourkela Sramik Sangh Vs. Rourkela Mazdoor Sabha & Ors [1991] INSC 103 (16 April 1991)
Sawant,
P.B. Sawant, P.B. Singh, K.N. (J)
CITATION:
1991 AIR 1250 1991 SCR (2) 399 JT 1991 (2) 272 1991 SCALE (1)743
ACT:
Labour
Law: Code of Discipline-'Implementation Machinery-State Labour
Commission-Verification Officer-Who is.
HEAD NOTE:
The
appellant, Rourkela Sramik Sangh, is a trade union in the Rourkela Steel Plant.
It addressed a letter to the Implementation and Evaluation Officer-cum-Labour
Commissioner, under the Code of Discipline 1958, whereby it sought recognition
as the sole bargaining agent in the Rourkela Steel Plant. For this purpose, it requrested
the Labour Commissioner to pass orders for immediate verification of the
membership of all the trade unions operating in the Plant and to recommend for
recognition of the union having majority of the membership. The Labour
Commissioner as the Implementation and Evaluation Officer authorised the Deputy
Labour Commissioner to carry out the process of verification of the membership
of the registered trade unions, who in turn passed orders calling upon the
different trade unions to produce the necessary records.
The Ist
respondent-Rourkela Mazdoor Sabha-which is a rival union, challenged by way of
a writ petition the orders passed by the Labour Commissioner and the Deputy Labour
Commissioner. At the same time, the appellant union filed a writ petition
seeking a direction to the Labour Commissioner, and the Deputy Labour
Commissioner, to complete the process of verification and recognition within a
stipulated time.
The
High Court by its common judgment allowed the Ist respondent's petition and
dismissed the appellant's petition. The High Court held that since the
appellant- Union had addressed its application for
recognition not to the Implementation Machinery but to the Implementation
Officer, the same was not properly made as the Implementation Officer had no
authority to initiate the process of recognition. The decision of the High
Court was based on the finding that the Implementation and Evaluation Officer
was not the "Implementation Machinery" within the meaning of the Code
of Discipline.
400
Allowing the appeal and directing the Deputy Labour Commissioner and the Labour
Commissioner to complete the proceedings of recognition as expeditiously as
possible, this Court,
HELD:
(1)
The "Implementation Machinery" envisaged in section 11 of the Code of
Discipline consists of two separate Organisations, viz., Implementation Units
in the respective Labour Departments, and Tripartite Implementation Committees
at the Central, State and local levels. Each of the Organisations has been
assigned different functions and they are independent of each other while
carrying out the same. Thus, the constitutions of the Implementation units and
Implementation Committee, are different and they function in different areas.
[406H-407D]
(2)
Since the Implementation Unit/Implementation Officer entrusted with the task of
granting recognition to the union in the State of Orissa was the Labour Commissioner of the
State, the appellant-Sangh had rightly approached the Labour Commissioner for
the purpose. [409A]
(3)
Since the State Labour Commissioner was named as the Implementation Officer who
is none but the officer in charge of the Implementation Unit, the State Labour
Commissioner as the Implementation Officer has an option either to carry out
the verification of membership himself or to entrust it to some other officer
like the Deputy Labour Commissioner as in the present case. That was only an
entrustment of a ministerial work. [409D]
(4)
The Deputy Labour Commissioner in the present case is the Verification Officer
and under clause (10) of Appendix IV, he has to send his report to the
Implementation Officer or Unit, i.e., the State Labour Commissioner, and the
State Labour Commissioner will in turn communicate his decision as the State
Implementation Machinery to the management as well as the Unions. [409E]
(5)
The High Court was wrong in holding that the Implementation Unit or the Labour
Commissioner was not the "Implementation Machinery" but only a
Verification Officer. [409C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1824 of 1991.
From
the Judgment and Order dated 14.5.1990 of the Orissa High Court in O.J.C. No.
4426 of 1989.
401 Shanti
Bhushan and Prashant Bhushan for the Appellant.
Gobind
Das, S.B. Upadhyay, Harish Salve, Ms. Kirti Misra and S.R. Grover for the
Respondents.
The
Judgment of the Court was delivered by SAWANT, J. Leave granted.
2. The
only question which falls for consideration in the present case is-what is the
meaning of "Implementation Machinery" within the meaning of the Code
of Discipline (hereinafter referred to as the "Code") ratified by all
Central Employers' and Workers' Organisations at the 16th session of the Indian
Labour Conference held in May 1958 and which came into force from June 1, 1958.
The question assumes importance in the present case because the High Court by
the impugned decision has held that since the appellant-Union had addressed its
application for recognition not to the Implementation Machinery but to the
Implementation Officer, the same was not properly made and the Implementation
Officer had no authority to initiate the process of recognition.
3. The
admitted facts are that the appellant Rourkela Sramik Sangh had addressed a
letter on October 9, 1989 to the Implementation and Evaluation Officer-cum-Labour
Comissionner-Orissa, Cuttack intimating him that as per the Code it had called
upon the Rourkela Steel Plant to recognise it as the sole bargaining agent in
the Plant, but that the Plant had not replied to the same. The appellant in the
said letter had further requested the Labour Commissioner to pass orders for
immediate verification of the membership of all the trade unions operating in
the said Plant and to recommend for recognition, the Union having majority of the membership. On receipt of
this request, the Labour Commissioner as the Implementation and Evaluation
Officer authorised the Deputy Labour Commissioner on December 5, 1989 to carry out the process of
verification of the membership of the registered trade unions. In pursuance of
the same, the Deputy Labour Commissioner passed an order on December 14, 1989 calling upon the different trade
unions to produce the necessary records within 10 days of the receipt of the
notice. These orders passed by the Labour Commissioner and Deputy Labour
Commissioner were challenged by the Ist respondent-Rourkela Mazdoor Sabha which
is a rival union in the Plant by way of a Writ Petition being OJC No. 4426 of
1989 in the High Court of Orissa. At the same time, the appellant- 402 Union
filed a Writ Petition being OJC No. 361 of 1990 seeking a direction to the Labour
Commissioner, and the Deputy Labour Commissioner to complete the verification
of the membership of the Unions and to fix a time-limit to complete the process
and recognition and for ancillary reliefs. Both the writ petitions were heard
together by a Division Bench of the High Court and by its impuged common judgment,
the Court was pleased to allow the Ist respondent's petition and dismiss the
appellant's petition.
The
decision of the Court was based only on the finding that the Implementation and
Evaluation Officer was not the "Implementation Machinery" under the
Code and the Implementation Officer had no authority to process the application
for recognition.
4. The
relevant provisions of the Code are as follows:
Section
II of the Code deals with "Implementation Machinery" and is headed as
such. It begins as follows:
"2.
To implement the Code of Discipline, labour enactments, awards and agreements, a
separate machinery has been set up at the Centre and in all States. This
machinery comprises:
(a) implementation
units in Labour Departments, and (b) tripartite implementation committees at
the Central, State and local levels." Thereafter it proceeds to deal with
Implementation Units and states as follows:
"(i)
Implementation Units:
3. A
Central Implementation and Evaluation Division has been set up in the Ministry
of Labour and Employment under the charge of a Joint Secretary.
In the
State also, Implementation Units have been set up under the charge of either a
whole-time officer of the Labour Department or of the State Labour
Commissioners. According to the recommendations of the Labour Ministers'
Conference held in January, 1960 the Implementation Officer in each State
should, as far as possible, he whole- time and of sufficient seniority. The
following functions have been assigned to 403 Implementation Units:
(1) to
ensure Implementation of the Code of Discipline, Code of Conduct, labour
enactments, awards, agreements, etc., with a view to reducing at the source the
main cause of industrial strife;
(2) to
supplement the work of the Industrial Relations Machinery in taking preventive
action where disputes are brewing and in settling long pending disputes which
could not be settled otherwise;
(3) to
maintain liaison with Central, State or local units, as the case may be, to
ensure effective working of the implementation machinery;
(4) to
arrange meetings of Implementation Committees and to function as their
Secretariat;
(5) to
bring about out-of-court settlement of cases pending in High Courts and the
Supreme Court;
(6) to
ensure that cases are screened by the Screening Committees set up by the
Central Employers' and Workers' Organisations before appeals are filed in
higher courts;
(7) to
evaluate;
(a)
major strikes, lock-outs and disputes in order to fix responsibility for them,
and (b) the working of important Labour legislations, awards, policies,
decisions, etc. in order to see how far they have produced the results which
they were intended to produce and suggest measures to improve them.
(8) to
collect and maintain necessary statistics regarding implementation of the Code
of Discipline, labour enactments awards etc.
X X X X
X X X X X X X It then deals with Implementation Committees and states as
follows:
404
"(iii) Implementation Committees:
6. The
Implementation Committees at the Centre and in the States represent both
Central Employers' and Workers' Organisations. The Central Implementation and
Evaluation Committee consists of an equal number of employers' and workers'
representatives- four each from the Central employers' Organisations. They are
nominated by the organisations to which they belong and not by Government .
State/Administration Implementation Committees are also required to be
constituted in consultation with the Central Employers' and Workers' Organisations
wherever they have affiliates in the States/Territories concerned.
These
Committees are presided over as far as possible by respective Labour Ministers.
At the local level, the Committees comprise an equal number of representatives
of employers and workers in the area and are presided over by an officer of the
Labour Department of by a prominent person in the region.
7. The
functions assigned to Implementation Committees by the Standing Labour
Committee in October, 1957 and other Committees are as follows:- (1) to examine
the extent of implementation of agreements, awards and settlements and to
advise the parties which are anxious to implement an award but are unable to do
so, as to how the difficulties in implementation could be overcome.
(2) to
fix responsibility for violations of the Code in cases brought to its notice by
the Implementation Unit or in those enquired into by it or a sub-committee
appointed by it. In doing so, the Committee may hear the parties concerned if
considered necessary.
(3) To
consider cases for out-of-court settlement with the consent of the parties,
screening of cases of industrial disputes before appeals are filed, etc. that
may be brought to its notice by the Implementation Unit or such other cases
that the Committee may desire, to bring about harmonious labour-management
relations.
405
(4) to review periodically the working of the Code in their respective spheres.
(5) to
maintain a two-way exchange of experience between the Committees at the lowest
level and the Central Committee. At points of importance arising at any level
should be given wide circulation." The Code further assigns the
Implementation Units among others the duty to provide the secretariat for the
Implementation Committees and to ensure that their decisions are implemented
promptly. We have also seen from the enumeration of the functions of the
Implementation Units above, that the Units have to arrange meetings of the
Implementation Committees and to function as their secretariat.
5.
Section IV of the Code provides for "Grievance Procedure". It states,
among other things, that it is the responsibility of the Central and
State/Administration Implementation Units to ensure that a grievance procedure
is set up by every management in consultation with their workers.
6.
Section V of the Code deals with Recognition of Unions and states as follows:
"11.
Except in those States where the procedure to conferrecognition on unions is
governed by a statute the conditions and procedure for recognitions of unions
are governed by the provisions of the Code of Discipline. It is the
responsibility of Implementation Units to ensure that recognition is granted to
unions by managements wherever they satisfy the prescribed criteria. The
procedure to be followed for this purpose is at Appendix IV. For the sake of
uniformity the State Implementation Units are requested to adopt it."
Appendix IV which is referred to above is headed as follows:
"PROCEDURE
FOR VERIFICATION OF MEMBERSHIP OF UNIONS FOR THE PURPOSE OF RECOGNITION UNDER
THE CODE OF DISCIPLINE" It is not necessary to set out the entire
procedure stated in the said Appendix. A reference to only first who clauses
and clause (10) of the 406 said procedure would suffice for our purpose. They
state follows:
"(1)
On receipt of a representation from a union for recognition under the Code of
Discipline the Central/State Implementation Machinery will first ascertain:
(a) the
names of unions functioning in the establishment together with their number and
date of registration by reference to the Registrar of Trade Unions concerned;
(b) whether
any of the unions functioning in the establishment was responsible for an
established breach of the Code during the past one year. (By an `established
breach of the Code' is meant a breach reported to and on enquiry established by
the Implementation Machinery of the State or the Centre), (c) whether the
existing recognised union, if any, has completed a period of two years of
recognition.
(2)
After ascertaining the above facts, the Implementation Machinery at the Centre
will request the Chief Labour Commissioner to arrange verification of
membership of unions entitled to recognition under the Code. In the States,
either the Implementation Officer will carry out this verification or get it
done through the State Labour Commissioner, depending on the practice in each
State.
X X X X
X X X X X X (10) The verification officer will report his findings to the
Central/State Implementation machinery which in turn will communicate its
decision to the management as well as to the unions. In his report the
verification officer will also indicate the total numbers of workers in the
establishment and the percentage of the verified membership to it." We may
also mention in this context that Annexure I to the Code lays down a criteria
for recognition on unions.
7. It
will thus be apparent from the aforesaid provisions of the Code that the
"Implementation Machinery" envisaged by the Code consists of two
separate Organisations viz., Implementation Units in 407 the respective Labour
Departments, and Tripartite Implementation Committees at the Central, State and
local levels. Each of the Organisations has been assigned different functions
and they are independent of each other while carrying out the same. While the
Central Implementation and Evaluation Division is set up in the Ministry of Labour
and Employment under the charge of a Joint Secretary, the Implementation Units
in the States are set up under the charge of a whole-time officer of the Labour
Department. It is recommended that the Implementation Officer should be a
whole-time officer and of sufficient seniority as far as possible. The
Implementation Units have, among other things, been entrusted with the task of
ensuring that every management sets up a grievance procedure in consultation with
their workers and ensuring that recognition is granted to Unions by management
wherever they satisfy the prescribed criteria by following the procedure laid
down for the purpose in Apendix IV. We have already pointed out that the
prescribed criteria is laid down in annexure I of the Code. Further
pre-conditions for recognition are laid down in clause (1) of Appendix IV.
Thus
the constitutions of the Implementation Units and Implementation Committees are
different and they function in different areas.
8. It
appears that the High Court has basically been swayed by the fact that in
clause (1) of the Appendix IV it is stated that on the receipt of the
representation from unions for recognition, the Central/State
"Implementation Machinery" will first ascertain the facts stated in
sub- clauses (a), (b) and (c) thereof and thereafter, if at the Centre the
"Implementation Machinery" will require the Chief Labour Commissioner
to arrange the verification of membership of unions entitled to recognition and
if in the States either the Implementation Officer will carry out the
verification or get it done through the State Labour Commissioner depending
upon the practice obtaining in each State. The High Court also seems to have
been influenced by the provisions of clause (10) of the said Appendix which
requires the Verification Officer to report his findings on membership to the
Centre/State "Implementation Machinery".
The
High Court has obviously mistaken the whole for the part. As we have pointed
out earlier, although Section II of the Code is headed "Implementation
Machinery" the "Implementation Machinery" consists of two
separate Organisations, viz., Implementation Units and Tripartite
Implementation Committees. This is obvious from the language of Section II itself.
Their separate constitutions and functions also make this aspect clear. What is
further, to hold that the Implementation Unit in the respective Labour
Department together with the respective Tripartite Implemen- 408 tation
Committee at the Central, State or Local Level would constitute the
Implementation Machinery jointly and not each of them separately would run not
only counter to the intention of the Code as is manifest from the clear
language of Section II and their separate composition and functions, but would
also be impracticable in working. We have reproduced above the composition of
the Implementation Committees at the Centre and the State Level. These
Committees consist of, at the central level, an equal number of employers' and
workers' representation-four each from the central Employers' and Workers' Organisations
as nominated by the Organisations themselves. At the State level, they are
required to be constituted similarly and in consultation with the Central
Employers' and Workers' Organisations wherever they have affiliates in the
State concerned. The Committees are further presided over as far as possible by
respective Labour Ministers and even where it is not possible for Labour
Minister to preside over them, they have to associate themselves as much as
possible with the deliberation of the Committees. At the local level, the
Committees are similarly constituted of an equal number of representatives of
the employers' and Workers' in the area and are presided over by an Officer of
the Labour Department or by a prominent person in the region. In a given case
there may be more associations than one of employers and employees, and the
Committees would thus consist of an unwieldy number. To except such a Committee
to carry out the work mentioned in Appendix IV is unrealistic. That is why the
Code itself has entrusted to the Implementation Units and not to the
Implementation Committees the task of ensuring that recognition is granted to
unions by management. At the Centre, the Implementation Unit is kept in charge
of a Joint Secretary and at the State level it is in charge of a whole-time
officer of the State Labour Department.
9. The
record further shows that as early as on May 26, 1959, i.e., after about a year
of the ratification of the Code, the Government of India issued a statement
naming and designating Officers Incharge of Evaluation and Implementation work
in all the States and further stated as follows:
".
. . .It is requested that all complaints of non- implementation of Labour Laws,
awards settlements, agreements, Code of Discipline etc., relating to
undertakings in the State sphere may kindly be referred, in future, to State
Implementation Officers concerned . . . . ." So far as the State of Orissa
is concerned, the Implementation 409 Officer named by the Government of India
is the Labour Commissioner of the State. Since the Implementation
Unit/Implementation Officer entrusted with the task of granting recognition to
the Unions in the State of Orissa was the Labour Commissioner of the State, the
appellant- Sangh had rightly approached the Labour Commissioner for the
purpose. The High Court having committed the basic error of confusing the
Implementation unit and Tripartite Implementation Committee together with the
Implementation Machinery was misled into holding that the Implementation
Unit/Implementation Officer was not the proper authority to initiate the
procedure for recognition.
The
High Court was further wrong in holding that clause (10) of Appendix IV which
mentions that the Verification Office will report his findings to the
Implementation Machinery conveyed the meaning that the Implementation Unit or
the Labour Commissioner was not the "Implementation Machinery" but
only a Verification Officer. Since the State Labour Commissioner was named as
the Implementation Officer who is none but the officer in-charge of the
Implementation Unit, the State Labour Commissioner as the Implementation
Officer had an option either to carry out the verification of membership
himself or entrust it to some other Officer like the Deputy Labour Commissioner
as in the present case.
That
was only an entrustment of a ministerial work. The Deputy Labour Commissioner
in the present case is the Verification Officer and under clause (10) of
Appendix IV, he has to send his report to the Implementation Officer or Unit,
i.e., the State Labour Commissioner, and the State Labour Commissioner will in
turn communicate his decision as the State Implementation Machinery to the
management as well as the Unions.
10.
For the aforesaid reasons we are of the view that the High Court has erred in
allowing Writ Petition No. 4426 of 1989 filed by the Ist respondent and
dismissing the appllant's Writ Petition being No. 361 of 1990. We, therefore,
set aside the decision of the High Court and direct the Deputy Labour
Commissioner to complete the process of verification of membership and the Labour
Commissioner to complete the proceedings of recognition as expeditiously as
possible and preferably within four months from the receipt of this decision.
In the
circumstances of the case, the parties will bear their own costs.
R.S.S.
Appeal allowed.
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