Prayer: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus directing the 1st and 2nd respondents to conduct the election by secret ballot to enable the employees of 1st respondent to elect their representative body by electing two Unions who secure majority votes for every two years to hold talks / negotiations with the 1st respondent regarding various issues concerning the service conditions of the employees of the 1st Respondent/Corporation and to enter into settlement, settle the issue amicable etc. For Petitioner : Mr.Balan Haridas For Respondents 1 & 2: Mr.T.R.Rajagopalan Senior counsel for Mr.T.R.Rajaraman For Respondents 3 to 8: Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondent 9 : Mrs.Lita Srinivasan Government Advocate W.P.NO.5030 OF 2010 Coimbatore District Mill Labour Union (CITU) Rep. by its General Secretary, Registration No.78/CBE 381, Anupparpalayam, Coimbatore 641 009. ... Petitioner Versus National Textile Corporation Limited (Government of India undertaking) Southern Regional Office Rep. by its Chief General Manager (Technical) N.T.C. House, 35-B, Somasundaram Mill Road, Coimbatore - 641 009. ... Respondent Prayer: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to call for the records from the Respondent relating to the impugned circular dated 22.02.2010 bearing reference No.IR/2010-02 and the consequential letter dated 02.03.2010 bearing reference No.IR/201-03 and quash the same as illegal, arbitrary, without jurisdiction and consequently direct the respondents to continue to recognize the Unions which has the membership of 10% of the workforce in the Unit including casuals who have been working for over 10 years.
For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondent : Mr.T.R.Rajagopalan Senior counsel for Mr.T.R.Rajaraman COMMON ORDER Since the issue involved in both the writ petitions are one and the same, both writ petitions are taken up together.
2.The writ petition in W.P.No.1440 of 2010 has been filed by the Coimbatore Regional Mill Labour Union (shortly "the CRML Union").
3.The writ petition in W.P.No.5030 of 2010 has been filed by the Coimbatore District Mill Labour Union (shortly "the CDML Union").
4.Both the Unions are registered under the Trade Unions Act, 1926. The members of both the Unions are workmen, employed in the National Textile Corporation Ltd. (shortly "the Corporation"). The Corporation is fully owned by the Government of India. The Corporation runs textile mills in Tamil Nadu, Kerala, Andra Pradesh and Mahe in Pondicherry. 7 textile mills are owned by the Corporation in Coimbatore District in Tamil Nadu; 5 textile mills in Kerala; 1 textile mill in Andhra Pradesh and one in Mahe in Pondicherry. We are now concerned with the textile mills in the State of Tamil Nadu.
5.Many Unions are functioning in the textile mills owned by the Corporation. In 1991, the Corporation recognized the Unions at unit level, which had 5% of the work force as their members. In 1995, the same has been raised to 7.5%. In 1996, the same has been further raised to 10%. In all these years, the Corporation adopts check off system for granting recognition.
6.In December 2009, the Corporation sent a letter to the Unions stating that they have decided to increase the percentage from 10% to 20% for recognition. This was objected by all the Unions. They wanted the existing 10% for recognition of the Unions to continue. But they demanded secret ballot in lieu of check off system.
7.While so, the writ petition in W.P.No.1440 of 2010 was filed by the CRML Union, praying for secret ballot to elect the representative body. According to them, the first two Unions, which secure the highest votes, could be the representative Unions.
8.After filing the writ petition in W.P.No.1440 of 2010, the Corporation issued a circular dated 22.02.2010 stating that 15% of the work force as members would be sufficient to become a recognized Union. However, the Corporation stated that the check off system would continue. The CDML Union made a representation dated 23.02.2010 in reply to the circular dated 22.02.2010 requesting the Corporation not to alter the existing 10% work force as membership for recognition. The representation was rejected by the Corporation by the order dated 02.03.2010 reiterating their earlier letter dated 22.02.2010. This led to the CDML Union filing a writ petition in W.P.No.5030 of 2010 to quash the orders dated 22.02.2010 and 02.03.2010 of the Corporation and for a consequential direction to hold secret ballot to recognize the Unions which have the membership of 10% of the work force, including casuals, who have been working for over 10 years.
9.Notice of motion was ordered on 28.01.2010 in W.P.No.1440 of 2010. The writ petition in W.P.No.5030 of 2010 was admitted on 11.03.2010 and interim injunction was also granted on the same day. The Corporation has filed a counter affidavit.
10.Heard the submissions made on either side and perused the materials available on record.
11.The Corporation owns 7 mills in Tamil Nadu. In all the mills, the recognition of Unions are done at the unit level. That is, in each mill, trade unions are recognized based on their membership. In 1991, a trade union that had 5% of total work force in the unit as its members was recognized. Later, in 1995, it was raised to 7.5%. In 1996, it was further raised to 10%. From the year 1996 onwards, the unions are recognized if they have 10% of work force as its members. The Corporation follows the check off system and election by secret ballot system has not been conducted so far. Now, the Corporation is willing to conduct election by secret ballot system to elect the recognized unions at the unit level.
12.Though the CRML Union prayed for recognition of only two unions that secure highest votes, the learned counsel for the CRML Union submitted that the Union is agreeable for recognizing unions that have 10% of work force as its members. But the Corporation insisted that 15% should have been criteria and not 10% for recognition of Unions. The other controversy is that according to the Corporation, the casuals would not be the voters and they could not be permitted to participate in the election.
13.According to the learned counsel for both the Unions, the existing 10% is followed from the year 1996 i.e. for the past 14 years and that therefore, there is no justification to increase it to 15%. They further submitted that since substantial workmen are employed as casuals in the name of temporary, casuals or gate coolies, they should not be excluded from the election process and if they are not given voting right, the same would affect the industrial peace and harmony. It is also submitted that if the Corporation wants to change from 10% to 15%, they should have issued notice under
Section 9-A of the Industrial Disputes Act.
14.On the other hand, the learned senior counsel for the Corporation submitted that the Corporation is willing to give voting right to casual employees, if the unions agree for 15% of work force as their members for recognition.
15.However, the Unions have not agreed for 15%. Hence, two issues have arisen for consideration. Those issues are:
(i)whether the Union that secure votes representing 10% of work force has to be recognized or the Union should get 15% of work force for recognition; and
(ii)whether the casual employees are to be given voting rights.
Issue No.1:-
16.As stated above, all the parties have agreed for secret ballot. The controversy is only relating to percentage of votes that requires for recognition. While the Unions stick on to their stand that the existing system of recognizing Unions that have 10% of work force as its members to continue, the Corporation insists that 15% of work force should be the criteria.
17.It is not in dispute that 10% of work force has been followed for the past 14 years i.e. from 1996 onwards. The reason given by the Corporation for increasing it from 10% to 15% is that the Management has spent 100 crores in the seven unit mills and in order to have effective discussion regarding the pending issues, it has become necessary to increase the percentage of the membership to 15%. In this regard, the averment made in para 6 of the counter affidavit filed by the Corporation is extracted hereunder:
"6.....Further the respondent management has spent 100 crores in the seven unit mills and in order to have effective discussion regarding the pending issues, it has become necessary to increase the percentage of the membership to 15%......"
18.In my view, the contention of the Corporation has no merit. It is not known as to how the increase in percentage from 10% to 15% could lead to effective discussion regarding the pending issues. On the other hand, the following pleading in the counter affidavit filed by the Corporation makes it very clear that 10% has been followed for the past 14 years i.e. From 1996.
"...... Originally in the year 1991 the minimum required strength fixed at 5% of membership by the Respondent which was raised to 7.5% in the year 1995 and raised to 10% in the year 1996 as mentioned in para 4........."
19.If the recognition is not based on 10% for the past 14 years, then one should have appreciated the stand taken by the Corporation. On the other hand, the existing practice of taking 10% for recognizing a Union supports the claim of the petitioners. I also find considerable force in the submissions made by the learned counsel for the petitioners that before increasing the existing 10% to 15%, the Corporation should have given notice under
Section 9-A of the Industrial Disputes Act as the same amounts to altering the conditions of service as per item No.8 in Fourth Schedule of the Industrial Disputes Act and the same is extracted hereunder:
"9-A. Notice of change.- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,-
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change-
(a) where the change is effected in pursuance of any [settlement or award]; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.
The Fourth Schedule Conditions of service for change of which notice is to be given
8.Withdrawal of any customary concession or privilege or change in usage;"
20.In these circumstances, I hold that the recognition should be given to a trade Union that secures votes representing 10% of work force. If a Union gets 20%, then one more representative could be permitted during the negotiations. If a Union gets in between 10% and 20%, it will have only one representative. That is, for every 10%, the recognized Union will have one representative during the negotiations, etc. Once the Unions are granted recognition by election, that will be valid for three years. Issue No.1 is answered accordingly.
Issue No.2:-
21.In fact, the Management has agreed to include the casuals who have put in 240 days of service in their career in the voters list, if the Unions agree for 15% work force as their members for the purpose of recognition. However, the Management made it clear that if the Unions do not agree with their proposal, the Management would not include the casuals in the voters list.
22.Admittedly, the casuals constitute a substantial number of work force in each of the units. The Corporation has given the details of number of permanent workers, badlis, apprentices and casuals. The details as provided are as follows:
S.No.
Mills Per Badlis Apprentices Casuals Total 1 Coimbatore Murugan 465 19 220 704 2 Sri Ranga Vilas 374 29 300 703 3 Cambodia 292 59 180 531 4 Pankaja 328 48 175 551 5 Kaleeswara B Unit 251 4 250 505 6 Pioneer 172 1 73 255 501 7 C.S. & W. Mills 305 20 325 The aforesaid details make it very clear that the casuals constitute above 40% of the work force.
23.It is stated that in Kerala, casuals are not included in the voters list and that therefore, the casuals could not be included in the voters list in Tamil Nadu. The details of number of workmen employed in Kerala are not available. But the aforesaid details make it very clear that casuals are employed in substantial numbers. According to the petitioner Unions, casuals should be deemed to have been treated as permanent workmen in view of the provisions contained in Tamil Nadu Industrial Establishment (Conferment and Permanent Status) Act, 1981.
24.I am not going into the contentions raised by the petitioners that they should be treated as permanent workmen. But the casuals who are employed in such a large number should not be left out in the election process relating to recognition of unions. The casuals are also workmen under
Section 2(s) of the Industrial Disputes Act. They are also members of the petitioner Unions. If the large number of workmen are left out, the election process would undermine the industrial peace and harmony. Hence, the Corporation is directed to include the casuals who have rendered 240 days of service in their voters list, to choose their representative. Issue No.2 is also decided in favour of the petitioner Unions holding that the casuals are entitled to vote in the election to be conducted for the purpose of electing recognized Unions.
25.Accordingly, the respondent Corporation is directed to conduct election in all the 7 textile mills in Tamil Nadu for the purpose of granting recognition to the Unions, under the guidance and directions of the Assistant Commissioner of Labour, Coimbatore, within a period of eight weeks from the date of receipt of a copy of this order. The Assistant Commissioner of Labour, Coimbatore is directed to supervise the elections that are to be conducted by the respondent Corporation.
26.The writ petitions are disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
PRI/TK To
1.Chief General Manager National Textile Corporation Limited Southern Regional Office N.T.C. House, Post Box No.2409, 35-B, Somasundaram Mill Road, Coimbatore - 641 009.
2.The Chairman Cum Managing Director National Textile Corporation Limited Scope Complex, Core - IV, 7 Lodi Road, New Delhi - 110 003.
3.The General Secretary Coimbatore District Mill Workers Union (CITU) No.127, Anupparpalayam, Coimbatore - 641 009.
4.The Secretary Tamil Nadu Joint Action Council of Textile Trade Unions No.27, Mosque Street, Chepauk, Chennai - 600 005.
5.The General Secretary The Coimbatore District Textile Workers Union (HMS) No.2212, Trichy Road, Singanallur, Coimbatore - 641 005.
6.The Secretary Coimbatore District Mill Workers Union (AITUC) No.99, R.K.Street, Kattor, Coimbatore - 641 009.
7.The President Kovai Mavatta Panjalai Anna Thozhilalar Sangam No.102, Grey Town, Coimbatore - 641 018.
8.The General Secretary Coimbatore Periyar Districts Dravida Panchalai Thozhilalar Munnetra Sangam No.69, Tata Bad Street - 3, Coimbatore - 641 012.
9.The Assistant Commissioner of Labour Office of the Assistant Commissioner of Labour Dr. Balasundaram Road, Coimbatore 641 018