Bharat Sanchar Nigam Limited (BSNL) came into existence on 01.10.2000 and nearly 3.6 lac employees working in the erstwhile Department of Telecom (DOT), Department of Telecom Services (DTS) and Department of Telecom Operations (DTO) were transferred on deemed deputation to the Company. Nearly 3 lac Group C and D employees spread throughout the country of the erstwhile Departments gave option for absorption in BSNL in March 2001. Thereafter, for the purpose of recognition of a majority union , to discuss and settle various staff related issues, a process for membership verification had to be undertaken. To evolve the process, a meeting was held by BSNL management with all the federations / associations / union of these employees that existed in DOT and erstwhile DTO/DTS. In the said meeting, it was decided unanimously that the verification for electing majority representative union would be held through secret ballot as per the procedure laid down by the Ministry of Labour. Under the procedure evolved, a union which gets majority votes subject to a minimum of 15% of the votes, will be eligible for recognition at all India Level. Besides that, a union which gets 50% of the votes in a circle, will have the right to deal with the matters of purely local interest, such as, for instance the handling of grievances pertaining to its own members. In the subsequent meeting held on 28.092001, the following decisions were taken:-
(i) Number of Unions to be recognised in BSNL after members verification As per agreed Code of Discipline, only one union, which gets majority votes subject to minimum of 15%, would be recognised.
(ii) Whether BSNL is an Industry or an Establishment Telecom, is to be treated an 'Industry' and BSNL as its 'Establishment'. Accordingly, as per the agreed Code of Discipline only one union which secures majority votes subject to a minimum of 155 at All-India Level shall be granted recognition in BSNL. However,considering the voluminous size of the Organisation, as a special case, it was agreed to treat the Telecom Circles as 'unit' meaning thereby that the Union, other than the majority representative union, which secures 50% or more votes in a Circle, shall have the right to deal with the matters of purely local interest of its members. This will be in addition to the Circle Level Organisation of the recognised majority representative union.
(iii) Period of Validity of recognition of majority union in BSNL As per Code of Discipline, the recognition shall be for a period of two years.
2. Subsequent to the above understanding, first membership verification for recognition for a majority union of non-Executives was held on 25.09.2002 by secret ballot. The petitioner Union namely, National Federation of Telecom Employees-BSNL (NFTE-BSNL) was declared as majority union. Since the petitioner Union had secured above 15% and also majority votes out of the votes polled, it was granted recognition by Notification No.BSNL/5/SR/2002, dated 04.10.2002. It was notified as representative union at All-India / Circle / SSA levels. The recognition was for a period of two years commencing from 04.10.2002 to 03.10.2004. Yet another union known as BSNL Employees Union (BSNLEU) on securing more than 50% of votes in 9 Circles i.e. Assam, Kerala, NE-1, NE-II, T & D, Telecom Factory Kolkatta, Telecom Stores Kolkatta and West Bengal Circles, was granted right to deal with the matters of purely local interest such as the handling of grievances pertaining to its own members in these nine circles. Since the term of first recognition expired on 03.10.2004, the second verification of membership through secret ballot was initiated and election was held on 01.12.2004. In the said election, BSNLEU secured the majority votes 49.25% and the petitioner union secured 35.3% of votes. As per the agreed Code of Discipline BSNLEU was recognised on All-India Level and the petitioner union on account of securing 50% or more votes in the ALTTC, Chhattisgarh and Maharashtra Circles, was also given the right to deal with the matters of purely local interest of its members at the Circle / SSA level in addition to the Circle level organisation of the recognised majority representative union namely, BSNLEU. The term of recognition was to expire on 05.12.2006. In a similar fashion, third verification of membership was held and the results were also declared.
3. Fourth verification of membership was conducted through secret ballot during the month of January 2009. Polling was conducted on 21.01.2009 and the counting was taken up on 23.01.2009. As many as 14 registered unions participated in the election including the petitioner union. As per the results declared by the Chief Returning Officer vide his letter Ref. No.GM(SP)CRO/2008 dated 24.01.2009, the BSNL Employees Union was declared as majority representative union of non-executive employees of All-India / Circle / SSA Levels in BSNL for a period of two years commencing from 27.01.2009. The petitioner union (NFTE-BSNL) on account of securing more than 50% of votes in Bihar, Chhattisgarh, Jharkhand, NTR and Tamil Nadu Circles was given the right to deal with the matter of purely local interest of its members at the Circle / SSA levels of these circles. This would be in addition to the Circle Level Organisation of the recognised majority representative union.
4. The grievance of the petitioner union is that though it secured more than 50% of votes polled insofar Chennai Circle is concerned, in the notification dated 27.01.2009 bearing Ref. BSNL/5-1/SR/2008/Vol.II (i) , it has not been given the right to deal with the matters of purely local interest in the Chennai Telecom Circle as per the Code of Discipline. In this regard , the petitioner Union made a representation on 03.02.2009 to the Chairman-cum-Managing Director, BSNL, New Delhi. But, by letter in Ref. No.BSNL/5-1/SR/2008 Vol.II, dated 12.02.2009, the 1st respondent declined to confer the said right on the ground that the petitioner union had not secured 50% of votes out of total number of voters i.e. Electorate. Challenging the above two proceedings of the 1st respondent, the petitioner has come forward with the present writ petition.
5. The crux of the contention of the petitioner is that as per the agreement reached between the unions and the BSNL management in the presence of the Chief Labour Commissioner (Central) in the meeting held on 28.09.2001, as a special case, it was agreed to treat the telecom circle as Unit meaning thereby that the union other than the majority representative union which secures 50% or more votes in a circle shall have the right to deal with the matters of purely local interest of its members. According to this agreement, it would be suffice , if a union secures more than 50% of votes polled, to have the right of representation of purely local interest and it does not refer to securing of more than 50% of voters viz., the total electorate.
6. In the counter affidavit filed by the respondents, inter alia, it is stated that the petitioner union was not given the right of representation of purely local interest because it did not secure more than 50% of the total number of electorate. According to the respondents, securing of more than 50% of votes polled is not the criterion but it should secure more than 50% of the total number of electorate.
7. I have considered the rival submissions.
8. This case is based on the interpretation of the Code of Discipline for recognition of unions in the Telecom Industry. Admittedly, Telecom has been construed as an Industry and BSNL is treated as an Establishment for all purposes to ensure better discipline in the Industry. By consensus, the Code of Discipline for recognition of unions was evolved. As per the said Code of Discipline, the number of employees, who are in support of a particular union is not calculated on the basis of the membership which the said union posses. Instead, an election is conducted, in which the employees are free to vote irrespective of their membership in a particular union and it is based on the total number of votes secured in the election, the fate of a union for recognition is decided and not on the basis of verification of membership as claimed by each union. It goes without saying that an employee , who has got membership in a particular union is free to vote in favour of a different union. Therefore, for the purpose of recognition, his support will be counted not in favour of the union in which he is a member, but in favour of a union for whose benefit the said employee has voted. This clearly indicates that though the process is known as "verification of membership, in practice, it does not denote the membership in a particular union. What is material is the vote of a member and not his membership.
9. As per the Code of Discipline, indisputably, election is held for recognition of only one union at National Level. The union which secures majority votes subject to a minimum of 15% is recognised as recognised union to represent the cause of the workers to the management. It may also happen that a union, which has got no membership or vote in a particular circle may emerge successful and get recognition at National Level. In such a case, it will be difficult for a member belonging to the said circle to approach the recognised union, which has got no vote in the circle at all, to highlight his grievances, which are purely of local interest. Only to avoid such an anomalous situation, in the Code of Discipline, it was provided that irrespective of there being a recognised union at National Level, yet another union which secures more than 50% of votes polled will have the right to deal with the matters of purely local interest. The said provision is now sought to be interpreted by the respondents that for having such right, what is required is not merely 50% of votes polled, but, 50% of the total membership in that unit (circle level). The learned counsel for the respondents would submit that this is the way, in which the Code of Discipline has been understood by all concerned and the same has been followed all along. He would take me through the earlier proceedings during the membership verification held on three previous occasions to say that those unions, which secured more than 50% of membership alone were allowed to enjoy the right to represent the local interest and the same was not based on 50% of votes polled in the election. But, the learned counsel appearing for the petitioner would submit that prior to the introduction of the Code of Discipline for the purpose of recognition, a system known as "Check-off" was followed, under which the membership in each union would be physically verified by means of relevant records and based on the same , recognition was given. The said system was done away with by the introduction of the Code of Discipline, because, there were several employes who claimed to be members in more than one union and thus making it very difficult to ascertain the majority membership. If the argument of the learned counsel for the respondents that such right of representation is given only on the basis of securing 50% of membership is to be accepted, then, the process of election will become meaningless.
10. The right of recognition at the National Level as well as right of representation at Circle Level is decided by democratic process. The will of the majority is the hallmark of the democracy. Majority needs to be ascertained by secret ballot which ensures freedom to vote according to the free will of the voter. Majority cannot be understood to mean majority of total electorate , but, it can only mean the majority of total participants in the election. The Code of Discipline needs to be interpreted in such a way so as to make such democratic process meaningful and the secret ballot workable. If the Code of Discipline is understood differently to hold that it is not 50% of votes polled, but it is only 50% of membership of employees working in the unit, then it will not be in tune with the object of the democratic process under the Code of Discipline. If the membership is the criterian, then there need not be secret ballot as the membership could be verified by following check-off method which was in vogue prior to the introduction of the Code of Discipline. The very fact that an employee who happens to be a member of a particular union is not precluded from voting in favour of a different union would manifestly indicate that it is not his membership which counts , but it is his vote which counts. Therefore, there can be no difficulty in coming to the conclusion that under the Code of Discipline it is only 50% or more votes of the employees polled in the election and not membership of 50% or more of the membership in a particular union, which decides the fate of a union to represent the matters of purely local interest.
11. If the Code of Discipline is so interpreted , as it is stated by the respondents, to say that to get the right of local representation, a union has to secure the support of 50% of the total number of voters, it may happen that in the event no union securing 50% of the total number of voters, then there will be no union to represent the local interest. For instance, if the total number of votes polled itself is less than 50% of the total number of voters, then, obviously, no union will have the right to represent the local interest. Thus, the interpretation, sought to be made by the respondents , if accepted, would only lead to an anomalous situation thereby defeating the very object of the Code of Discipline. If the Code of Discipline is properly understood, by keeping the object of the same in mind, there can be no difficulty in coming to the conclusion that it is only 50% of the votes polled and not 50% of the voters which gives right of representation of local interest.
12. The learned counsel for the respondents would rely on a judgement of the High Court of Jammu and Kashmir in OWP No.19 of 2005 in National Federation of Telecom Employees (BSNL) v. Bharat Sanchar Nigam Limited and others, wherein the High Court of Jammu and Kashmir while dealing with the Code of Discipline in question has held that it is not 50% or more of votes, but it is only 50% or more of membership. With great respect, I am unable to agree with the said view taken. A perusal of that judgement would go to show that the object behind the Code of Discipline; the object behind giving such representation for local union; and the object of holding secret ballot were not argued before the Court and the Court had no occasion to consider the issue in the light of the above. Thus, the conclusion arrived at by the High Court of Jammu and Kashmir does not persuade me and so I am unable to follow the same.
14. Indisputably, in the case on hand, though the petitioner union has not secured majority votes, for getting recognition at All-India Level, it has secured more than 50% of votes polled in Chennai Telecom Circle and so it is entitled for enjoying the right to represent the matters of purely local interest as per Clause (6) of the Code of Discipline.
15. In the result, the writ petition is allowed; the impugned communication of the 3rd respondent dated 27.01.2009 bearing reference BSNL/5-1/SR/2008/Vol.II(i) and the further impugned communication of the 1st respondent dated 12.02.2009 bearing reference BSNL/5-1/SR/2008/Vol.II are quashed and the respondents are directed to issue appropriate orders within a period of four weeks from the date of receipt of a copy of this order granting right to the petitioner union to represent the matters of purely local interest in Chennai Telecom Circle. Consequently , connected MPs are closed. No costs.