Prayer in W.P.No.32360 of 2016 :
Writ Petition filed under
Article 226 of the Constitution of India praying this Court to issue a writ of mandamus, directing the first respondent to hold elections to conduct the exercise as per the code of Discipline in the petitioner establishment, after giving due notice to the respondent unions 2 to 12 and submit its report declaring the union among the petitioner unions which should be recognised by the petitioner in terms of criteria for recognition of Unions in terms of Annexure I to code of Discipline.
W.P.No.35540 of 2016 Strides Shasun Limited Unit II, Rep. by its General Manager-HR-C.D.Surendran R.S.No.32,33 and 34, PIMS Road, Periyakalapet, Puducherry - 605 014. ... Petitioner vs.
1. The Commissioner of Labour, Puducherry.
2. Ilanthalaivar Raghul Gandhi Puducherry Shasun Formulation Thozhilalargal / Uzhiyargal Nala Sangam (Registration No.1726/RTU/2013) No.110, Murugan Koil Street, Periyakalapet, Puducherry - 650 014.
3. Shasun Formulation All Employees Welfare Union (Registration No.1734/RTU/2013) No.26/B, Throwpathi Amman Koil Street, Pillachavadi, Puducherry - 650 014. .... Respondents Prayer in W.P.No.35540 of 2016 :
Writ Petition filed under
Article 226 of the Constitution of India praying this Court to issue a writ of mandamus, directing the first respondent to hold elections to conduct the exercise as per the code of Discipline in the petitioner establishment, after giving due notice to the respondent unions 2 and 3 and submit its report declaring the union among the petitioner unions which should be recognised by the petitioner in terms of criteria for recognition of Unions in terms of Annexure I to code of Discipline.
W.P.No.39167 of 2016 Strides Shasun Limited Rep. by its General Manager-HR-C.D.Surendran A1/B, Sipcot Industrial Complex, Kudikadu Village, Cuddalore - 607 005.
Writ Petition filed under
Article 226 of the Constitution of India praying this Court to issue a writ of mandamus, directing the first respondent to hold elections to conduct the exercise as per the code of Discipline in the petitioner establishment, after giving due notice to the respondent unions 2 to 11 and submit its report declaring the union among the petitioner unions which should be recognised by the petitioner in terms of criteria for recognition of Unions in terms of Annexure I to code of Discipline.
For petitioner : Mr.S.Ravindran in all the WPs For respondents : Mr.M.Elumalai, Govt. Advocate for R1 in W.P.No.39167 of 2016 Ms.D.Reena Iswariya, AGP (Pondy) for R1 in W.P.Nos.32360 and 35540/2016 Mr.Stalin Abhimanyu for R2 to 5, 7, 8 and 10 to 12 in W.P.Nos.32360 of 2016 and for R3 in W.P.No.35540 of 2016 Mr.T.V.Sureshkumar for M/s. Genicon Associates for R6 in W.P.No.32360 of 2016 and for R2 in W.P.No.35540 of 2016 No appearance for R9 in W.P.No.32360/16 and for R2 to R11 in W.P.No.39167 / 2016 COMMON ORDER The petitioner in W.P.No.32360 of 2016 is a pharmaceutical industry engaged in the manufacture of active pharmaceutical ingredients from 1986. The petitioner management has been holding negotiations with the Unions with regard to the issues relating to industrial relations and also entering into settlement on wage increase and other related issues. Few of the union have come into existence representing a handful of workmen. As a result, 11 unions have come up in the petitioner management. Although there are only 296 workmen in the petitioner establishment, without forming one or two unions, all these 296 workmen have got 11 union. In view of the multi union activity, there has been inter union rivalry in the establishments. As a result, the industrial relation is severely affected. At every meeting between the management and the unions, they are raising industrial disputes and 44 workmen represents these unions leading to stalemate in many of the issues and some of the unions are also raising industrial disputes before the Commissioner of Labour, Puducherry, the first respondent herein, therefore, a prayer is made to issue appropriate direction to the first respondent as prayed for.
2. The petitioner in W.P.No.35540 of 2016 is a pharmaceutical industry engaged in the manufacture of tablet and pharmaceutical products from 2005. The petitioner management has been holding negotiations with the Unions with regard to the issues relating to industrial relations and also entering into settlement on wage increase and other related issues. Few of the union have come into existence representing a handful of workmen. As a result, 2 unions have come up in the petitioner management. Although there are only 211 workmen in the petitioner establishment, they also formed two unions and they also formed a union under the name of NPR Shasun Formulation All Employees Union and recognition is pending. In view of the multi union activity, there has been inter union rivalry in the establishments. As a result, the industrial relation is severely affected. At every meeting between the management and the unions, they are raising industrial disputes and 8 workmen represent these unions leading to stalemate in many of the issues and some of the unions are also raising industrial disputes before the Commissioner of Labour, Puducherry, the first respondent herein. Accordingly, it is prayed for issuing suitable direction as prayed for.
3. The petitioner in W.P.No.39167 of 2016 is a pharmaceutical industry engaged in the manufacture of tablets and pharmaceutical products from 1991. The petitioner management has been holding negotiations with the Unions with regard to the issues relating to industrial relations and also entering into settlement on wage increase and other related issues. Few of the union have come into existence representing a handful of workmen. As a result, 11 unions have come up in the petitioner management. Although there are only 315 workmen in the petitioner establishment, without forming one or two unions, all these 315 workmen have got 11 union. In view of the multi union activity, there has been inter union rivalry in the establishments. As a result, the industrial relation is severely affected. At every meeting between the management and the unions, they are raising industrial disputes and 36 workmen represents these unions leading to stalemate in many of the issues and some of the unions are also raising industrial disputes before the Commissioner of Labour, Chennai, the first respondent herein.
4. Moreover, while attending the proceedings with the first respondent, they also take "On duty" to attend these meetings, which is most severely affecting production activities. As a result, in the year 2014 and 2015, the petitioner company has lost 1624 and 1546 man-days respectively due to on duty availed by the union representatives. Since the petitioner management has been pleading with the first respondent to conduct election for the purpose of deciding a single bargaining agent who could be recognised by the management to hold negotiations and to sign long term settlements, the first respondent may be directed to do the needful, learned counsel pleaded.
5. In this regard, several following representations were given by the petitioner on 27.01.2014, 12.03.2014, 31.04.2014, 26.05.2014, 05.01.2015, 09.06.2016, 27.06.2016, 20.09.2016 and 05.10.2016 requesting the first respondent to conduct election for the purpose of deciding a single bargaining agency. In support of their claim, they also placed the Judgment of the Hon'ble Supreme Court reported in 1995 (2) LLJ 272 and the order passed by this Court in W.A.No.674 of 2009 in the case of MRF United Workers Union v. Government of Tamil Nadu, wherein methodology of conducting election and guideline has been given for recognition of trade union. Therefore, when the petitioner management has been approaching the first respondent to conduct elections, for the purpose of deciding single bargaining agency, the first respondent cannot ignore the reasonable and genuine request. As there was a continuous refusal to accept the case of the petitioner, the learned counsel appearing for the petitioner prayed for allowing the writ petitions in the light of the interim order passed by this Court on 21.12.2016.
6. Mr.Stalin Abhimanyu, learned counsel appearing for R2 to 5, 7, 8 and 10 to 12 in W.P.Nos.32360 of 2016 and for R3 in W.P.No.35540 of 2016 requested this Court to adopt the arguments advanced by him for maintaining the writ petition and adding further he would also submit that since writ appeal has been filed challenging the correctness of the order passed by me on 21.12.2016 and the same is not taken up by the Division Bench, the matter may be postponed. He would further submit that as one of the respondents in the present writ petition has also filed a civil Suit in O.S.No.2188 of 2015 for the same relief, the petitioner management who is nothing to do with the holding of the election among the workers working in the petitioner's company cannot maintain the writ petitions. Considering the preliminary objection, placed by the learned counsel, I have passed the order in W.P.No.32360 of 2016 on 21.12.2016, that since the learned counsel appearing for the sixth respondent has given an undertaking before this Court today that the pendency of Civil Suit on the file of the Principal District Munsif, Puducherry is causing undue delay, the same would be withdrawn by the sixth respondent in W.P.No.32360 of 2016.
7. Pursuant thereupon, the sixth respondent has also filed an affidavit of undertaking, dated 11.01.2017 to withdraw the suit filed in O.S.No.2188 of 2015 before the Principal District Munsif Court, Puducherry. Therefore, when the suit filed by the sixth respondent seeking mandatory injunction directing the first respondent to hold election is being withdrawn, this Court finds no impediment to proceed with the present writ petitions.
8. The issue raised in the present writ petitions has already been considered by the Hon'ble First Bench of this Court in MRF United Workers Union v. Govt. of T.N, reported in 2009-IV-LLJ 685 (Mad). While dealing with a similar and identical question, it has been held as follows :
"37. Having noted this scenario and considering that there is continuous strife in the company, in our view, the Court cannot simply remain a silent spectator. We are aware that the Court has its own limitations while exercising jurisdiction to issue appropriate writ or direction. On analyzing the provisions of Article 19(1)(c), it recognizes the right to form association and also the mandate of Industrial Disputes Act that there should be recognized union and when there is a inclination of the State Government to accept a particular procedure, which is otherwise also accepted in different statutes throughout the country, in our view, the correct course will be to give a direction to the Commissioner of Labour to call upon the two unions to submit their membership details as per the Code of Discipline and examine their membership as provided under the Code over a period. In the event, there are any objections, the objections could be verified in the light of clause-7 of the Code of Discipline by personal interrogatories so as to arrive at the correct membership of either of the two trade unions. Alternative to this procedure namely, ballot system, which, although is recommended by the Committee of the ILO, is not accepted in any of the statutes which have been brought to our notice. The recommendations of the Committee can only be respected to this effect that there has to be a collective bargaining agent of the workmen, which is to be a truly and independent representative agent. As far as the methods suggested by the Committee is concerned, it would result into determination on the basis of the facts arrived at a particular point of time, which has not been very much appreciated as a proper method. The method of verification on the other hand will show the following of a particular union over a longer period and would definitely be a better option. The other alternative approach is to say that none of the methods is recognized and therefore the choice of the management will prevail. That certainly cannot be permitted in view of the provisions of the fifth schedule of the Act. The Code of Conduct has a force of acceptance of the organizations of the workers and of the Management and also of the Government, and is being followed in different undertakings. Further, it is also in tune with the provisions of the different statutes in different States.
38. In the circumstances, in our view, the only alternative, as stated above, is to direct the State Government and the Commissioner of Labour to conduct the exercise as per the Code of Discipline, to which the State Government is agreeable. Accordingly, the Petitioner Union may apply to the concerned Labour Commissioner within two weeks from today presenting the claim of its membership figures during the last six months i.e., for the period from 1st march, 2009 to 31st August, 2009. On receipt of such an application, the concerned Labour Commissioner will issue notice to the two unions, within two weeks from the date of receipt of the application, calling upon them to submit their membership registers and the necessary supportive documents under the Code of Discipline within two weeks from the date of receipt of the notice by them. The notice will call upon them to produce their records as per the Code of Discipline during the period of six months prior to the date of notice. The Labour Commissioner shall thereafter proceed to decide as to which Union is the representative union of the workmen. We cannot permit the Management to say that the Union which shows the larger membership at the end of the exercise will not be recognized by the Management. Recognition is for the purpose of representing the causes of the workmen in various fora including before the Management and various authorities under the Labour Law. It is not a determination available for the sole satisfaction of the Management. It is a factual determination and the determination leads to a status. The Union which establishes a larger membership at the end of the aforesaid exercise, shall be recognized as the representative union.
39. The writ petition is allowed with the aforesaid directions. In view of the disposal of the writ petition with the directions specified above, the writ appeal stands disposed of. The miscellaneous petitions will stand disposed of. Those workmen who want to avail the benefit of the settlement will be free to accept it, though it will be open to the petitioner union to challenge the legality and validity thereof by taking appropriate steps by raising demand and carrying the matter to the Industrial Tribunal."
9. Following the Judgment of the Apex Court in the case of Food Corporation of India Staff Union v. Food Corporation of India, reported in 1995-II-LLJ-272, the Hon'ble First Bench of this Court has come to the conclusion that on analysing the provisions of
Article 19 (1)(c) of the Constitution of India, which recognises the right to form association and also the mandate of Industrial Disputes Act there should be a recognised Union, hence the choice of the management will prevail. Accordingly, it has directed the Commissioner of Labour to conduct the election, as per the Code of Discipline, to which the State Government also agreed. Therefore, when the recognition is for the purpose of representing the causes of the workmen in various fora including before the Management and various authorities under the Labour Law, the Union which establishes a larger membership at the end of the aforesaid exercise, shall be recognized as the representative union.
10. Therefore, when this Court has already recognised the right to form association on the basis of the provisions of
Article 19 (1) (c) of Constitution of India, the petition filed by the petitioner management to the first respondent to hold Election to decide the status of recognised union among the respondents-Unions being genuine and reasonable, this Court is inclined to allow the writ petitions as prayed for and accordingly, the writ petitions stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. The said exercise shall be completed within the period of three months from the date of receipt of a copy of this order.
19.01.2017 tsvn Internet : Yes / No To
1. The Commissioner of Labour, Chennai.
2. The Commissioner of Labour, Puducherry.
T.RAJA, J tsvn W.P.Nos.32360, 35540 and 39167 of 2016 19-01-2017