Hon'ble Rakesh Srivastava, J.
(Delivered by Hon'ble Krishna Murari, J.) Petitioner, Hindustan Aeronautics Employees Association is a registered trade union under the provisions of the Trade Unions Act, 1926 having its own bye-laws known by the name of Hindustan Aeronautics Employees Association, Lucknow Bye-laws. It has approached this Court seeking a writ of certiorari for quashing the notification dated 09-07-2014 issued by the Chief Labour Commissioner (Central), New Delhi, the respondent no. 2 appointing the Regional Labour Commissioner (Central), Lucknow, the respondent no. 3 as an election officer for conducting a referendum through 'secret ballot' in the establishment of Hindustan Aeronautics Limited, Lucknow and also the notification dated 19-09-2014 issued by the respondent no. 3 notifying the election programme for a referendum by a secret ballot.
An application dated 06-10-2014 has been moved by Hindustan Aeronautics Karmchari Sangh seeking impleadment in the proceedings on the allegations that it is also a registered trade union of the workmen of Hindustan Aeronautics Limited Lucknow having its own bye-laws. Hindustan Aeronautics Employees Union, Lucknow, the respondent no. 7 has also come up with a short counter affidavit alleging therein that the petitioner has made a concealment of the facts that there are four other trade unions namely; Hindustan Aeronautics Employees Union, Lucknow, Hindustan Aeronautics Karmchari Sangh, Lucknow, Hindustan Aeronautics Rastriya Shram Sangthan, Lucknow and Hindustan Aeronautics Karmchari Sabha, which are all registered trade unions under the Trade Union Act, 1926 with the Registrar, Trade Unions, Uttar Pradesh, Kanpur and the alleged election of the petitioner's trade union by 'secret ballot' was, as a matter of fact, conducted by the management of the Hindustan Aeronautics Limited, which is illegal and the said trade union does not represent the majority of the workmen. It has also been alleged that the respondent no. 7 has 1409 workmen as its members and the management of the Hindustan Aeronautics Limited is colluding with the petitioner's trade union.
Thus there are more than one registered trade unions operating. When there are two or more trade unions operating in an industrial establishment it becomes a bone of contention as to with whom the employer should negotiate or enter into bargaining to settle the matters concerning service conditions of the workmen employed in the establishment. The issue assumes importance because if the settlement is arrived at between the employer and a trade union, the members whereof are in minority the settlement arrived at may not be acceptable to the majority and may result into serious industrial unrest.
Such an issue came up for consideration of the Hon'ble Apex Court in the case of Food Corporation of India Staff Union vs. Food Corporation of India, 1995 Supp (1) SCC 678 wherein the trade unions of the workmen operating in the Food Corporation of India agreed to follow the secret ballot system for assessing the representative character of the trade unions. However, in order to put a quietus to such dispute which very often arises in the establishment/industry where there are more than two registered trade unions, the Hon'ble Apex Court, after issuing notice and hearing all the major trade union organizations on this aspect, laid down the details guidelines for assessing the representative character of the trade union by 'secret ballot system'. It may be relevant to quote the paragraph 4 of the said judgment of the Hon'ble Apex Court laying down the norms and procedures to be followed for assessing the representative character of the trade union by 'secret ballot system'.
" 4. (i) As agreed to by the parties the relative strength of all the eligible unions by ay of secret ballot be determined under the overall supervision of the Chief Labout Commissioner (Central) (CLC).
(ii)The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCL. The Returning Officer shall be an officer of the Government of India, Ministry of labour.
(iii) The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer.
(iv) The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/workers (Categories III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the pro forma prescribed by the CLC. The said list shall constitute the voters list.
(v) The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof to each of the unions for raising objections, if any. The unions will file the objections to the Returning Officer within the stipulated period and the decision of the Returning Officer shall be final.
(vi) The FCI shall make necessary arrangement to :
(a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice boards and also at other conspicuous places for the information of all the workers;
(b) print requisite number of ballot papers in the proforma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions;
(c)the ballot papers would be prepared in the pro forma prescribed by the CLC in Hindi/English and the regional language concerned;
(vii)The Returning Officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of poling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI.
(viii)The election schedule indicating the dates for filing of nominations, scrutiny of nomination papers, withdrawal of nominations, polling, counting of votes and the declaration of results shall be prepared and notified by the Returning Officer in consultations with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one month's time shall be allowed to the contesting unions for canvassing before the date of filing the nominations.
(ix)To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination.
(x)The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer.
(xi)At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voter list and advise him thereafter to procure the secret ballot paper from the Presiding Officer.
(xii)The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned. In the event of non-production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI.
(xiii)After the close of the polling, the Presiding Officer shall furnish detailed ballot paper account in the pro forma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer.
(xiv)After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representatives of each of the unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof.
(xv)The contesting unions through their representatives present at the counting place may be allowed to file applications for re-counting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a given case if he is satisfied that there is reason to do so he may permit re-counting. However, no application for re-counting shall be entertained after the results of the votes are declared.
(xvi)The result of voting shall be complied on the basis of valid votes polled in favour of each union in the pro forma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence.
(xvii)After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC.
(xviii)The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition.
(xix)It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The objection shall be heard by the CLC and disposed of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law."
Admittedly, there are more than one registered trade unions operating in Hindustan Aeronautics Limited; one being Hindustan Aeronautics Employees Association, the petitioner and other Hindustan Aeronautics Karmchari Sangh. Apart from above, there are four other trade unions as disclosed by respondent no. 7 in its short counter affidavit which fact has not been denied or even seriously disputed by the parties before us.
We have heard Sri Vivek Raj Singh, learned counsel for the petitioner, learned Assistant Solicitor General of India representing the respondents no. 1 to 4, Sri J.K.Sinha for respondent no. 7 and Sri Birendra Prasad Singh through whom an application for impleadment of Hindustan Aeronautics Karmchari Sangh has been filed.
Learned counsel for the petitioner submitted that total number of workmen in Hindustan Aeronautics Limited, Accessories Division, Lucknow is 1756 as on 01-08-2014 out of which 1749 workmen are members of the petitioner's trade union and regularly paying their membership subscription and only seven workmen are not its member.
This fact has been seriously disputed by the learned counsel appearing for other trade union seeking impleadment. A perusal of the pleadings goes to show that a letter dated 17-07-2013 was issued by the Regional Labour Commissioner (Central), the respondent no. 3 to Hindustan Aeronautics Limited for verification of the membership of the majority of the workmen through 'secret ballot referendum'. The General Manager, Hindustan Aeronautics Limited vide its letter dated 08-11-2013 informed the Regional Labour Commissioner (Central), Lucknow, the respondent no. 3 that the petitioner's trade union is one having majority membership of the workmen, and as such there was hardly any necessity for a referendum.
Thus, there is no denial rather there is an admission that there exists more than one registered trade union in the establishment. Respondent no. 3 vide its letter dated 28-11-2013 informed the Chief Labour Commissioner, the respondent no. 2 that talks were held with the office bearers of the petitioner's employees association and the Karmchari Sangh on various dates and there has been no consensus between the office bearers of the two trade unions. The letter also records that lastly the talks were held on 08-12-2013 in which Hindustan Aeronautics Employees Association vehemently asserted that a referendum through a 'secret ballot' be held in order to verify the fact as to which two trade unions have majority of membership and accordingly recognition be accorded to the trade union. By the said letter, a recommendation was made that verification with respect to the majority of the membership of the trade unions may be ascertained by means of a referendum by 'secret ballot'.
The Chief Labour Commissioner (Central), the respondent no. 2 thereafter vide letter dated 09-07-2014 appointed the respondent no. 3, the Regional Labour Commissioner (Central) as Election Officer for the purpose for holding a referendum through a 'secret ballot'. The respondent no. 3, thereafter, vide its letter dated 24-07-2014 required the General Manager, Hindustan Aeronautics Limited to provide the list of all such workmen who are entitled to participate and vote in the referendum in the meeting to be held on 11-08-2014. The petitioner's trade union participated in the meeting and raised the same objection that since it has a majority of the workmen as its members the referendum was unnecessary and uncalled for.
The Regional Labour Commissioner, the respondent no. 3 after considering the facts and circumstances notified the election programme for referendum on 19-09-2014.
At this stage, it may also be pertinent to note that an identical situation had arisen in 2003 when the Deputy Labour Commissioner issued a notification dated 04-03-2003 for holding referendum which was challenged by the petitioner's trade union by filing writ petition no. 1583 (M/B) of 2003. Though initially this Court stayed operation of the notification dated 04-03-2003 vide interim order dated 26-03-2003 but subsequently, the writ petition was dismissed vide order dated 27-04-2010.
The only ground being pressed by the petitioner's association for challenging the notification issued for holding a referendum by 'secret ballot' is that majority of the workmen employed in the establishment are their members and the said trade union being registered is only entitled to be recognized and there is no reason or occasion for holding any referendum. Apart from, the issue being one purely of fact, it is within the domain of the workmen to take a decision to which particular trade union they would like owe their allegiance and would prefer to be recognized to negotiate regarding their service conditions and other interest and for settlement of any of their right or dispute with the management. It is only such a trade union which would represent the majority and then only any settlement arrived at by such a trade union with the management would be widely acceptable.
A converse situation may result into discord, disharmony and industrial unrest, which would not be in the interest of either of the workmen, the establishment and even the nation.
As already observed above, issues being raised are pure questions of fact requiring investigation on the basis of the evidence, which is normally not undertaken in exercise of powers conferred by Article 226 of the Constitution of India. The issue being raised herein can be most appropriately addressed and resolved by referendum to be conducted through a secret ballot. The result of the referendum would reflect the will of the majority of the workmen and in a democratic set-up it is the will of the majority which reigns supreme.
Furthermore, this petition has been presented in the registry of this Court on 25-09-2014 while the process of the election, as per the notification, commenced on 19-09-2014, which was the date fixed for providing the voter list to the unions.
It is well settled that once the election process has commenced no interference is warranted.
For the aforesaid reasons and discussions, we are not inclined to interfere with the orders impugned in this petition as also the election process.
As a consequence, writ petition fails and accordingly stands dismissed.
However, in the facts and circumstances, there shall be no order as to costs.
Dt. 22.12.2014 nd.