Allowed

Kerala Independent Silk Employees Union v. State of Kerala

Kerala HC11 Dec 2012WP(C)/23522/2012

Case brief

AI extract

What is this about?

The High Court of Kerala directed the Labour Commissioner and District Labour Officer to complete a trade union referendum within three months. The court dismissed requests for exemption under the 2010 Act, holding the existing recognition status required the process to conclude without indefinite delay.

What did the court decide?

Directed respondents 3 & 4 to complete the referendum process within three months and drop any proceedings based on the request for exemption.

Kerala Independent Silk Employees Union Vs… — Labour and Industrial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934

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WP(C).No. 23522 of 2012 (M)

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PETITIONER :

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KERALA INDEPENDENT SILK EMPLOYEES UNION REG.NO.03/24/1988, AUTOKAST UNIT REPRESENTED BY ITS SECRETARY, E.M.SANTHOSH KUMAR AUTOKAST LIMITED, CHERTHALA.

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BY ADVS.SRI.C.S.AJITH PRAKASH

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SRI.T.D.SALIM

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SRI.C.S.YESUDAS SRI.PAUL C. THOMAS

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY,

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INDUSTRIES DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.

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2. SECRETARY LABOUR AND REHABILITATION DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.

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3. THE LABOUR COMMISSIONER OFFICE OF THE LABOUR COMMISSIONER THIRUVANANTHAPURAM-695 001.

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4. THE DISTRICT LABOUR OFFICER ALAPPUZHA/RETURNING OFFICER, CIVIL STATION ALAPPUZHA-688 011.

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5. MANAGING DIRECTOR AUTOKAST LIMITED, CHERTHALA-688 582.

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6. ALL KERALA SILK EMPLOYEES UNION (INTUC) REG.NO.229/91, AUTOKAST UNIT, CHERTHALA REPRESENTED BY ITS SECRETARY, AUTOKAST LIMITED CHERTHALA-688 582.

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...2/-

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WP(C).No. 23522 of 2012 (M) -2-

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7. SILK EMPLOYEES UNION (CITU)

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REG.NO.140/81, AUTOKAST LTD., CHERTHALA

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REPRESENTED BY ITS SECRETARY, AUTOKAST LIMITED CHERTHALA-688582.

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8. KERALA STEEL WORKERS UNION (TUCI) AUTOKAST LTD., CHERTHALA

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REPRESENTED BY ITS SECRETARY, AUTOKAST LIMITED CHERTHALA-688 582.

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R1 TO R4 BY ADV. SRI. NOUSHAD THOTTATHIL R5 BY ADVS. SRI.K.ANAND SMT.LATHA KRISHNAN R6 BY ADV. SMT.RASHMI RAVINDRAN R7 BY ADVS. SRI.ASOK M.CHERIAN SRI.R.K.MURALEEDHARAN SMT.K.S.SANGEETHA SRI.R.ROHITH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 23522 of 2012 (M)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXT.P1 :	COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE ADDITIONAL REGISTRAR OF TRADE UNION WITH NO.03-24/1988.
EXT.P2 :	COPY OF THE JUDGMENT DTD.6.7.08 IN WPC NO.2341/08.
EXT.P3 :	COPY OF THE MINUTES OF THE MEETING DTD.5.6.08.
EXT.P4 :	COPY OF THE CHALLAN SHOWING THE REMITTANCE OF RS.1,000/- DTD.2.11.2011.
EXT.P5 :	COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DTD.3.1.2012.
EXT.P6 :	COPY OF THE PROCEEDING OF THE REGISTRAR OF TRADE UNION NO.B(2)27810/2011 DTD.2.5.2012.
EXT.P7 :	COPY OF THE NOTICE ISSUED BY THE DISTRICT LABOUR OFFICER DTD.12.6.2012.
EXT.P8 :	COPY OF THE LETTER DTD.28.5.2012 ISSUED BY THE 5TH RESPONDENT TO THE DISTRICT LABOUR OFFICER, ALAPPUZHA.
EXT.P9 :	COPY OF THE LETTER ISSUED BY THE 6TH RESPONDENT INTUC UNION DTD.1.6.2012.
EXT.P10:	COPY OF THE LETTER ISSUED BY THE 7TH RESPONDENT CITU UNION DTD.1.6.2012.
EXT.P11:	COPY OF THE LETTER DTD.26.6.2012 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.
EXT.P12: RESPONDEN	COPY OF THE LETTER NO.B(2)27810/2011. TS' EXHIBITS :
EXT.R5(a)	COPY OF COMMUNICATION ISSUED BY THE LABOUR COMMISSIONER.
EXT.R6(a)	COPY OF THE CALL LETTER FOR WRITTEN EXAMINATION TO ONE OF THE CANDIDATE 26.9.2012.

//TRUE COPY//

P.S. TO JUDGE

HARUN-UL-RASHID, J.

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W.P.(C).No.23522 Of 2012

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Dated this the 11^th day of December, 2012.

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J U D G M E N T

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The writ petition is filed seeking a direction directing respondents 3 & 4 to complete the process of referendum initiated as per Ext.P6 order of the Registrar of Trade Union, within a time frame to be fixed by this Court and for other reliefs.

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The petitioner is a registered trade union formed by the workers of the 5^th respondent company and registered under the Trade Unions Act. Ext.P1 is the copy of the registration certificate issued by the Additional Registrar of Trade Unions. Respondents 6 to 8 are also trade unions representing the workers of the 5^th respondent company. The petitioner is aggrieved by the inordinate delay in completing the process of referendum initiated as per Ext.P6 order and the alleged unfair alliance of the 5^th respondent company with respondents 6 & 7

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and thereby preventing the conduct of referendum of the recognised trade union in the industrial establishment. It is submitted that the referendum is overdue for more than one year.

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W.P.(C).No.23522 Of 2012

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The service conditions of the employees of the 5^th respondent company are governed by bilateral and trilateral settlements arrived at by the recognised trade unions and the management. The referendum is conducted to decide the recognition of trade unions which are to be invited to the negotiation table for resolving industrial disputes and settlement talks.

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It is submitted that pursuant to the request made by the company to the 3^rd respondent to conduct referendum in the establishment, the 3^rd respondent issued proceedings as per order No.1(5)-706/2008 dated 25.4.2008 appointing the Regional Joint Labour Commissioner, Kollam as the returning officer. It is pointed out that though the returning officer was appointed, thereafter, the proposed referendum was not conducted. In the circumstance, the petitioner filed W.P.(C).No.2341/2008 seeking appropriate reliefs. This Court by Ext.P2 judgment dated 6.7.2008 held that proceedings dated 25.4.2008 marked as Ext.P6 and copy of the notice issued by the District Labour Officer marked as Ext.P7, shall be completed, as expeditiously as

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W.P.(C).No.23522 Of 2012

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possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment. In compliance with Ext.P2 judgment, a meeting was convened by the returning officer of the employees union as well as the management. It is said that the election calender was also published. It was decided that referendum to be conducted is for a period of three years and decided to conduct election on 12.8.2008. Ext.P3 is the copy of the minutes of the meeting dated 5.6.2008. In the meeting both sides also agreed to conduct the next referendum before the expiry of the period of three years from 12.8.2008. In the election held on 12.8.2008 respondents 6 & 7 unions alone acquired the required percentage and therefore the said unions are declared as recognised union in Autokast as collective bargaining agents.

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The petitioner submits that after the referendum conducted on 12.8.2008, other independent workers are associating with the petitioner union in the day to day activities and that the petitioner union has acquired a good reputation and recognition among the workers. The concept and conduct of

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W.P.(C).No.23522 Of 2012

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referendum is governed by the Kerala Recognition of Trade Unions Act, 2010 and the Kerala Recognition of Trade Unions Rules, 2011. The Act and Rules laid down various procedures for granting recognition of trade union for the purpose of collective bargaining. Sub Section 4 of Section 5 of the Kerala Recognition

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of Trade Unions Act reads as follows:

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“ 5. Issue of certificate for recognition.

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(1) x x x x x (2) x x x x x (3) x x x x x (4) If there are more than one applicant Trade Unions in respect of an industrial establishment or a class of industry in a local area, as the case may be, fulfilling the conditions laid down in sub-section (3) of Section 4, the Registrar shall arrange to hold an election by secret ballot in the prescribed manner in order to ascertain which of the applicant Trade Union secures the largest number of votes, being more than fifty one percent, of the votes cast by the workmen employed in the industrial establishment or the class of industry in the local area, as the case may be, and after recording the name of the Trade Union securing the largest number of votes as aforesaid in the prescribed register to be maintained by him for the purpose, grant a

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W.P.(C).No.23522 Of 2012

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certificate in the prescribed manner and within such time as may be prescribed to that Trade Union directing recognition of that Trade Union by the employer concerned and upon such recognition, that Trade Union shall be the sole bargaining agent in respect of the industrial establishment or the class of industry in the local area, as the case may be:

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Provided that the rest of the Trade Unions obtaining ten percent votes in a class of industry or fifteen percent votes in an industrial establishment will have all the rights of a recognised Trade Union and will be a party to a settlement. But in the event a consensus could not be arrived at, the sole bargaining agent will have the right to sign the settlement which will be binding under Section 12(3) of the Industrial Disputes Act, 1947 (Central Act 14 of 1947).”

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The petitioner applied for certificate of recognition. Copy of the challan showing remittance of Rs.1,000/- as fee is marked as Ext.P4. Ext.P5 is the copy of the communication dated 3.1.2012 issued by the 3^rd respondent pursuant to application submitted by the petitioner for verification of the documents. Subsequently, the Registrar of Trade Unions issued proceedings dated 2.5.2012 wherein it was decided to conduct referendum and appointed the District Labour Officer, Alappuzha,

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W.P.(C).No.23522 Of 2012

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the 4^th respondent in the writ petition, to conduct referendum. Pursuant to the said proceedings, Ext.P7 notice was issued by the District Labour Officer on 12.6.2012 to discuss about the conduct of referendum. The 5^th respondent submitted a letter to the District Labour Officer to defer the referendum stating that they have executed a memorandum of understanding with the Coach Factory Unit and Steel Fabricating Unit, that the work is in progress and that there is permission for fresh recruitment of staff and therefore it is submitted on behalf of the the management that referendum can be conducted after finalisation of the project and new recruitment. Ext.P8 is the copy of the communication submitted to the returning officer. It is submitted that respondents 6 & 7 also submitted similar requests, marked as Exts.P9 and P10, to the returning officer. The returning officer thereupon sought clarification from the 3^rd respondent Registrar of Trade Unions by issuing Ext.P11 communication dated 26.6.2012. While so, the 3^rd respondent , Labour Commissioner, issued Ext.P12 letter to the Secretary to Government intimating that the process of referendum cannot be stopped in half way

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W.P.(C).No.23522 Of 2012

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and therefore requested to exempt the establishment under Section 15 of the Act. The petitioner alleged that Exts.P11 & P12 orders are unwarranted, unauthorised and against the scheme and purpose of the Act and are originated as a result of the unfair games played by the 5^th respondent management and the existing recognised trade unions for not conducting referendum. It is also alleged that to achieve the said purpose, the management is supporting the recognised trade unions which is an unfair labour practice.

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In the counter affidavit filed by the respondents 5 & 6, it is pointed out that the Government have issued G.O(MS) No.07/12/ID dated 3.1.2012 for recruitment of 221 employees including 205 workmen. It is also stated that the first phase of written test for Diploma Trainees was conducted on 6.10.2012 and further written test and interview are on the scheduling. It is also stated in the counter affidavit that in the circumstances, it is not practical to conduct election in the 5^th respondent company immediately. The averments in the counter affidavit filed by the 6^th respondent supports the contentions of the 5^th respondent. It

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W.P.(C).No.23522 Of 2012

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is stated that to conduct referendum without completing the above said procedures will be a futile exercise and that it will be better for the proper working of the company to conduct the referendum after the strength of the company increases which is to come into force within a very short span of time.

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Respondents 3 & 4 have a duty to conduct referendum in every three years in view of the provisions contained in Act 16 of 2010. The Registrar appointed under the provisions of the said Act is fully vested with the powers and duties to implement the provisions of the Act and Rules. It is submitted that the 3^rd respondent has no right to indirectly recommend for exemption under Section 15 which is never sought for by the management of the company. It is also pointed out that the election of a recognised trade union is a process which starts from the appointment of the returning officer and ends with the declaration of results. The contention of the petitioner union that it has got every right to represent the workers in the bargaining table has much force. There is no reason to disbelieve that the attitude of the management by raising objections to the conduct

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W.P.(C).No.23522 Of 2012

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of referendum is only to help respondents 6 & 7 trade unions. It is equally true that the statement in Ext.P8 that a Coach Factory is likely to come and 200 persons is totally an irrelevant factor for the indefinite adjournment of conduct of referendum. There is every reason to believe that future recruitment of 200 persons will be employed is likely to be delayed and the management has not made any submission before this Court that recruitment process will be completed within a reasonable time. The Registrar of Trade Unions issued Ext.P6 proceedings as early as on 2.5.2012 appointing the returning officer for the conduct of the referendum. There is no justifiable reason for delaying the matter further and no circumstances exists for the 3^rd respondent Labour Commissioner to issue Ext.P12 letter to the 2^nd respondent Secretary to Government requesting to exempt the establishment under Section 15 of the Act. For the reason that the 3^rd respondent has already initiated proceedings and appointed a returning officer to conduct referendum, the returning officer is duty bound to proceed with the matter. The 3^rd respondent has no authority to request for exemption and no

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W.P.(C).No.23522 Of 2012

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circumstances exists for invoking the provisions of exemption under Section 15 of the Act.

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In the facts and circumstances stated above, the writ petition is disposed of directing respondents 3 & 4 to continue the process initiated as per Ext.P6 order of the Registrar of Trade Unions and to complete the process of referendum within a period of three months from the date of receipt of a copy of this

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judgment. The proceedings, if any initiated by the 2^nd respondent, on the basis of Ext.P12 communication shall be dropped.

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HARUN-UL-RASHID, Judge.

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bkn/-

Kerala Independent Silk Employees Union v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kerala Independent Silk Employees Union v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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