Chairman
S.B.I. & Anr Vs. Alalssoorciisastaiosnta & Teorbsa. Nk Officers [2002] Insc
253 (6 May 2002)
D.P.
Mohapatra & K.G. Balakrishnan D.P.Mohapatra,J.
Leave
is granted.
These
appeals filed by the Chairman, State Bank of India, Central Office, Mumbai and
the Chief General Manager, State Bank of India, Local Head Office at Bhubaneshwar
are directed against the judgment dated 24.11.1998 of the High Court of Orissa
in OJC No. 8863/1997 and the Order dated 23.7.1999 disposing of the petition
for review of the said judgment, Civil Review No.15/99, filed by the
appellants. The operative portion of the judgment dated 24.11.98 reads as
follows:
"For
the foregoing reasons we set aside paragraph 2 of the Staff Circular No.91 of
1987 if the same is still in force and direct the opposite parties to confer
such rights on the petitioner- Association as are available to them under Rule
24 of the Verification Rules.
The
Management of the State Bank of India are also directed to keep in mind the
observations made in this judgment while dealing with its employees, officers
and their Unions, recognized or unrecognized." The High Court, allowing
the review petition in part by the order dated 23rd July, 1999, issued the following directions :
"For
the aforesaid reasons, in partial modification of the judgment dated
24.11.1998, we pass the following order:-
(i) We
set aside paragraph 2 of the Staff Circular No.91 of 1987 if the same is still
in force and direct the management of the Bank to permit the writ petitioners-
Association to meet and discuss the grievances of any individual member of the
petitioner- Association relating to his service conditions in a regulated
prescribed manner and further to appear on behalf of its members in any
domestic or departmental enquiry or in any proceeding before the Conciliation
Officer, Labour Court, Industrial Tribunal or any other Tribunal.
(ii)
The management of the Bank will be at liberty to take such suitable
disciplinary action as permissible in law if any individual employee or officer
or office bearer of any Union or Association including the writ
petitioner Association, recognized or unrecognized, indulge in any coercive or
intimidating or indisciplined acts or behaviour.
(iii)
We also direct the management of the State Bank of India to keep in mind the relevant
observations made in the judgment dated 24.11.1998 and also in this order while
dealing with its employees, officers and their Unions, recognized or
unrecognized.
The
review is allowed in part to the extent indicated above." In the circular,
Staff Circular No.91 of 1987 dated 13-11-1987 which was under challenge in the
writ petition, it was stated that the bank does not enter into any dialogue
etc. with a non-recognized union/ association; that the bank has recognized the
All India State Bank Officers' Association for this circle; the said rights and
privileges cannot be extended to any other association of the Officers in the
same circle.
Para 2 of the Staff Circular No.91 of
1987 which was struck down by the High Court, reads as follows:
"Having
regard to very serious developments as brought out in our Staff Circulars Nos.
84 and 90 of 1987, it will not be in order for any Bank functionary to enter
into any dialogue or accept any representation from the office-bearers of the
unrecognized All Orissa State Bank Officers' Association in this Circle, even
in matters pertaining to individual grievances. In case the representatives of
the above unrecognized Association resort to any coercive methods like dharna, gherao
etc. decisions obtained, if any, under such circumstances would be deemed to
have been taken under duress and such decisions shall not be binding on the
Bank. Needless to add that the cases of officers indulging in such unwarranted
actions would be dealt with sternly and suitable disciplinary action would be
taken against them." From the judgment under challenge it is clear that
the controversy raised in the case relates to the rights of the All Orissa
State Bank Officers' Association (a non- recognised association), respondent
no.1 herein, vis-a-vis the Management of the Bank, to espouse the case of the
officers of the Bank with the management of the bank;
whether
the respondent association has any such right or the rights are vested only in
a recognized association, the All India State Bank Officers'
Federation/Association.
The
respondent No.1 Association represented through its General Secretary, filed
the writ petition raising grievance against unjust, unfair and hostile
treatment towards its members and claiming treatment at par with office-bearers
of the recognized association, and prayed that norms for guidance in matters
relating to a non-recognized association may be laid down by the Court. It does
not appear to have been disputed before the High Court and it was also not
disputed in this Court that a non-recognized association is a registered
association under the Trade Unions Act. The management of the Bank has not
recognized the said association. According to the Bank, the association does
not satisfy the criteria laid down by the Verification of Membership and
Recognition of Trade Unions' Rules, 1994 (hereinafter referred to as 'the
Verification Rules') framed by the Government of Orissa. The non-recognized
association pleaded that in 1982 the association submitted a list of its
members and claimed recognition, but in spite of recommendation of the
Officer-in-charge of the local Head Office, the Central Office at Bombay did not take any decision and
started adopting unfair labour practice to encourage defection from the
petitioner's association to the recognized association. The non- recognized
association also alleged that members of the recognized association are being
shown illegal and undue favour in the matter of posting, transfer,
entertainment or representations whereas the members of the non- recognized
association are being put to various inconveniences in a systematic and
calculated manner.
Certain
instances were stated in the writ application in support of the allegation of
hostile discrimination and unfair treatment.
The
Chief General Manager in the local Head Office at Bhubaneshwar, respondent No.2
herein, in his counter affidavit denied the allegations of discrimination,
arbitrary treatment and unfair practice. However, he referred to certain rights
and privileges allowed to members of recognized association and asserted that
only such rights and privileges were not being extended to the office-bearers
of the non-recognized association. He refuted the claim of the non-recognized
association for parity of treatment with members and office bearers of the
recognized association.
The
High Court in para 5 of the judgment observed, "Admittedly, the
verification of membership and recognition of Trade Union Rules, 1994 framed by
the State of Orissa are applicable to the petitioner- Association".
Thereafter the High Court took note of the provisions in Rule 18 in which it is
laid down that the Union which secures not less than 30% of
the total number of votes polled shall be entitled to be recognized and
considered. The provision of Rule 24 in which are enumerated the rights of a
non-recognized union is quoted herein below :
"24
(a) Rights of Unrecognised Union to meet and discuss with the employer or any
person appointed by him in that behalf the grievances of any individual member
relating to his service conditions.
(b) To
appear on behalf of its members employed in the establishment in any domestic
or departmental enquiry held by the employer and before the Conciliation
Officer/Labour Court/Industrial Tribunal or Arbitrator." The High Court
also took note of Rules 21 and 23 in which are enumerated the rights and
facilities of recognized unions. The High Court observed that the petitioner
association (respondent no.1) is still a non- recognized union and it is not
possible for the Court in exercise of writ jurisdiction to determine the
dispute over membership and that, when a statutory machinery is available it is
for the non-recognized association to avail of that machinery in accordance
with the prescribed procedure. Dealing with the question of the right of the
non-recognized association to speak on behalf of its members, the High Court
observed that a non-recognized union has no right to represent the entire
workmen but it has the right to represent those who are its members,
individually or as a group of workmen; acceptance of a demand and discussion
over a demand is not the one and same thing; right of raising grievance and
discussion is a fundamental right and cannot be taken away totally. The High
Court drew a distinction between acceptance of a demand and discussion over the
demand. The High Court placed reliance on the principles laid down and
observations made by this Court in Balmer Lawrie Workers' Union, Bombay & Anr. vs. Balmer Lawrie & Co. Ltd.
& Ors. [(1985) 2 SCR 492). The High Court held that the staff circular
No.91/1987 on the face of it is contrary to Rule 24 of the Verification Rules
and also violative of the rights forming the basis of a domestic society, and
that the management of the Bank cannot direct its officers not to enter into
any dialogue or accept any representation from the non-recognized union even in
matters pertaining to individual grievances. In para 9 of the Judgment the High
Court summed up its conclusions on the point in the following words:
"Mr.
Dora, learned Advocate appearing for the Bank and its management fairly submits
that there cannot be any direction contrary to Rule 24 of the Verification
Rules. Thus the direction contained in para 2 of the Staff Circular No.91 of
1987 is arbitrary, contrary to Rule 24 of the Verification Rules and liable to
be set aside." Dealing with the allegations of discrimination or unfair labour
practice etc. the High Court recorded the following findings in para 11 of its
judgment:
"However,
on the basis of the materials produced before us, we are unable to hold that
there is any deliberate or consistent policy of discrimination or unfair labour
practice against the members of the petitioner Association.
In the
affidavits filed on behalf of the management almost all the instances given by
the petitioner-Association have been specifically dealt with and answered.
There is no sufficient material from which we can conclusively hold any
systematic victimization or harassment of the members of petitioner-Association."
The High Court also took note of the submissions made on behalf of the
management of the Bank that excepting the specified office bearers of the
recognized Association or Union all other
officers of the bank are entitled to be treated equally in accordance with the
Bank's administrative policy irrespective of their union affiliation. On the
above findings and observations the High Court allowed the writ petition.
Coming
to the order passed on the review petition filed by the appellants it appears
that the main grounds urged in support of the prayer for review of the judgment
were that the Verification Rules framed by the Govt. of Orissa were not
applicable to the Officers of the Bank since they are not 'employees' within
the meaning of Rule 3 (c) of the Verification Rules, and that the Court had
erred in quashing para 2 of the Staff Circular No.91 of 1987 dated 13.11.1987
which is applicable on All India basis, since that would amount to disturbing a
long standing All India Policy of the Bank. Considering the first ground, the
High Court observed that the submission appears to be correct although during
hearing of the writ application it was clearly stated that the said Rules are
applicable. The High Court expressed its inability to give any finding on the
point in the absence of sufficient material before it. However, the High Court
further observed "so we are inclined to accept the contention that the
Verification Rules as such will not cover a Union
which is not a union of workmen as defined in the Industrial Disputes
Act". The further observation of the High Court was that although Rule 24
of the Verification Rules in terms does not apply to a union of officers who
are not 'workmen' but the principle behind the Rule can be extended to any non-recognized
union even if it is not a union of workmen. Dealing with the allegation made by
the non-recognized association regarding discrimination against its members and
office- bearers, the High Court reiterated that though the Verification Rules
as such do not apply to the petitioner's association if it is not a union of
workmen as defined under the Industrial Disputes Act, if any individual
employee or officer of a union or association of employees or officers
including petitioners association recognized or not indulge in any disorderly
or indisciplined or intimidating acts or behaviour, the management is at
liberty to take such action as is permissible in law.
The
High Court disposed of the Review Petition by passing the judgment/order which
has been quoted earlier.
With
growth of industrialization in the country and progress made in the field of
trade union activities the necessity for having multiple unions in an industry
has been felt very often. Taking note of this position power has been vested in
the management to recognize one of the trade unions for the purpose of having
discussions and negotiations in labour related matters. This arrangement is in
recognition of the right of collective bargaining of workmen/employees in an
industry. To avoid arbitrariness, bias and favouritism in the matter of
recognition of a trade union Rules have been framed laying down the procedure
for ascertaining which of the trade unions commands support of majority of
workmen/employees. Such procedure is for the benefit of the workmen/employees
as well as the management/ employer since collective bargaining with a trade
union having the support of majority of workmen will help in maintaining
industrial peace and will help smooth functioning of the establishment. Taking
note of the possibility of multiple trade unions coming into existence in the
industry, provisions have been made in the Rules conceding certain rights to
non-recognized unions.
Though
such non-recognized unions may not have the right to participate in the process
of collective bargaining with the management/employer over issues concerning
the workmen in general, they have the right to meet and discuss with the
employer or any person appointed by him on issues relating to grievances of any
individual member regarding his service conditions and to appear on behalf of
their members in any domestic or departmental enquiry held by the employer or
before the conciliation officer or labour court or industrial tribunal.
In
essence, the distinction between the two categories of trade unions is that
while the recognized union has the right to participate in the
discussions/negotiations regarding general issues affecting all workmen/
employees and settlement if any arrived at as a result of such
discussion/negotiations is binding on all workmen/employees, whereas a
non-recognized union cannot claim such a right, but it has the right to meet
and discuss with the management/employer about the grievances of any individual
member relating to his service conditions and to represent an individual member
in domestic inquiry or departmental inquiry and proceedings before the
conciliation officer and adjudicator. The very fact that certain rights are
vested in a non-recognized union shows that the Trade Union Act and the Rules
framed thereunder acknowledge the existence of a non-recognised union. Such a
union is not superfluous entity and it has a relevance in specific matters
relating to administration of the establishment. It follows, therefore, that
the management/employer cannot outrightly refuse to have any discussion with a
non-recognized union in matters relating to service conditions of individual
members and other matters incidental thereto. It is relevant to note here that
the right of the citizens of this country to form an association or union is
recognized under the Constitution in Article 19(1)(c). It is also to be kept in
mind that for the sake of industrial peace and proper administration of the
industry it is necessary for the management to seek cooperation of the entire work
force. The management by its conduct should not give an impression as if it favours
a certain sections of its employees to the exclusion of others which, to say
the least, will not be conducive to industrial peace and smooth management.
Whether negotiation relating to a particular issue is necessary to be made with
representatives of the recognized union alone or relating to certain matters
concerning individual workmen it will be fruitful to have
discussion/negotiations with a non-recognized union of which those individual
workmen/employees are members is for the management or its representative at
the spot to decide. At the cost of repetition we may state that it has to be
kept in mind that the arrangement is intended to help in resolving the issue raised
on behalf of the workmen and will assist the management in avoiding industrial
unrest. The management should act in a manner which helps in uniting its
workmen/employees and not give an impression of a divisive force out to create
differences and distrust amongst workmen and employees. Judged in this light
the contents of paragraph 2 of the Staff Circular No.91 of 1987 clearly give an
impression that the management has decided at the threshold before being aware
of the nature of the dispute raised that its representatives should have no
discussion at all with office bearers of the non-recognized association. Such a
circular is not only contrary to the express provision in Rule 24 but also runs
counter to the scheme of the Trade Union Act and the Rules.
In the
case of Balmer Lawrie Workers' Union (supra), this Court, reviewing the scheme
of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
Practices Act, 1971, traced the history of development of trade-unions on the
advent of industrial revolution and the need for multiple trade-unions in
industries and consequential necessity for selecting one of the trade-unions as
the recognised union by the management, and also took note of the difference
between the rights and privileges of a recognized trade- union and a non-recognised
trade-union. In that connection, this Court made certain observations, portions
of which are extracted hereunder:
"A
need was felt that where there are multiple unions seeking to represent workmen
in an undertaking or in an industry, a concept of recognized, union must be
developed. Standing Labour Committee of the Union of India at its 29th Session
held in July 1970 addressed itself to the question of recognition of trade
union by the employer. In fact even amongst trade union leaders there was near
unanimity that the concept of recognized union as the sole bargaining agent
must be developed in the larger interest of industrial peace and harmony.
National Commission on Labour chaired by late Shri P.B. Gajendragadkar, former
Chief Justice of India, after unanimously and wholeheartedly expressing itself
in favour of the concept of recognized union and it being clothed with powers
of sole bargaining agent with exclusive right to represent workmen, addressed
itself only to the question of the method of ascertaining which amongst various
rival unions must be accorded the status of a recognized union. Planting itself
firmly in favour of democratic principle, it was agreed that the union which
represents the largest number of workmen working in the undertaking must
acquire the status as that would be in tune with the concept of industrial
democracy." xxx xxx xxx "Before the introduction of Sec.2-A in the
Industrial Disputes Act, 1947 the courts leaned in favour of the view that individual
dispute cannot be comprehended in the expression 'industrial dispute' as
defined in the Industrial Disputes Act, 1947. Any dispute not espoused by the
union for the general benefit of all workmen or a sizeable segment of them
would not be comprehended in the expression 'industrial dispute' was the
courts' view. Often an invidious situation arose out of this legal conundrum.
An individual workman if punished by the employer and if he was not a member of
the recognized union, the latter was very reluctant to espouse the cause of
such stray workman and the individual workman was without a remedy.
Cases
came to light where the recognized union by devious means compelled the workmen
to be its member before it would espouse their causes. The trade union tyranny
was taken note of by the legislature and Sec.2-A was introduced in the
Industrial Disputes Act, 1947 by which it was made distinctly clear that the
discharge, dismissal retrenchment or termination of service of the individual
workman would be an industrial dispute notwithstanding that no other workman or
any union of workman is a party to the dispute. Sec.20, sub- sec.2 while
conferring exclusive right on the recognized union to represent workmen in any
proceeding under the Industrial Disputes Act, 1947 simultaneously denying the
right to be represented by any individual workman has taken care to retain the
exception as enacted in Sec.2A. This legal position is reiterated in Sec.20(2)
(b). Therefore while interpreting Sec.20(2)(b) it must be kept in view that an
individual workman, who has his individual dispute with the employer arising
out of his dismissal, discharge, retrenchment or termination of service will
not suffer any disadvantage if any recognized union would not espouse his case
and he will be able to pursue his remedy under the Industrial Disputes Act,
1947. Once this protection is assured, let us see whether the status to
represent workmen conferred on a recognized union to the exclusion of any
individual workman or one or two workmen and who are not members of the
recognized union would deny to such workmen the fundamental freedom guaranteed
under Art.19(1)(a) and 19(1)(c) of the Constitution." xxxx xxx xxx
".Conferring the status of recognized union on the union satisfying
certain pre-requisites which the other union is not in a position to satisfy
does not deny the right to form association. In fact the appellant union has
been recognized under the Trade Unions Act and the members have formed their
association without let or hindrance by anyone. Not only that the appellant
union can communicate with the employer, it is not correct to say that the
disinclination of the workmen to join the recognized union violates the
fundamental freedom to form association. It is equally not correct to say that
recognition by an employer is implicit in the fundamental freedom to form an
association. Forming an association is entirely independent and different from
its recognition.
Recognition
of a union confers rights, duties and obligations. Non- conferring of such
rights, duties and obligations on a union other than the recognized union does
not put it on an inferior position nor the charge of discrimination can be
entertained. The members of a non-recognised association can fully enjoy their
fundamental freedom of speech and expression as also to form the association.
The
Legislature has in fact taken note of the existing phenomen in trade unions
where there would be unions claiming to represent workman in an undertaking or
industry other than recognized union. Sec.22 of 1971 Act confers some specific
rights on such non-recognised unions, on such being the right to meet and
discuss with the employer the grievances of individual workman. The Legislature
has made a clear distinction between individual grievance of a workman and an
individual dispute affecting all or a large number of workmen. In the case of
even an unrecognized union, it enjoys the statutory right to meet and discuss
the grievance of individual workman. It also enjoys the statutory right to appear
and participate in a domestic or departmental enquiry in which its member is
involved. This is statutory recognition of an unrecognized union. The exclusion
is partial and the embargo on such unrecognized union or individual workman to
represent workman is in the large interest of industry, public interest and
national interest. Such a provision could not be said to be violative of
fundamental freedom guaranteed under Article 19(1)(a) or 19(1)(c) of the
Constitution." (emphasis supplied) The judgment of the High Court
disposing of the writ petition and the order disposing of the review petition
filed on behalf of the management make the position amply clear that the rights
and privileges vested in a non-recognized association are limited to espousing
the grievances of individual members relating to their service conditions and
representing them in domestic or departmental enquiries held by the employer
and not proceeding before the conciliation officer, labour court, industrial
tribunal or arbitrator. The High Court has not conceded any right to the
non-recognized union to participate in discussions relating to general issues
concerning all workmen.
In our
considered view there is no serious illegality or infirmity in the judgment and
order passed by the High Court. Therefore, no interference in the matter is
called for. Accordingly, the appeals are dismissed, but in the circumstances of
the case without any order as to costs.
..J.
(D.P.
MOHAPATRA) ..J.
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