Dismissed

National Commercial and General Workers Union v. the Labour Commissioner

Kerala HC18 Feb 2020WP(C)/12588/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition by a trade union challenging estate-wise referendums for recognition. The court held that unit-wise referendums are lawful and dismissed the plea as the petitioner failed to apply for recognition and delayed the proceedings.

What did the court decide?

The writ petition seeking to quash proceeding orders and directing a corporation-wide referendum was dismissed.

National Commercial and General Workers Union… — Labour and Industrial Disputes | Kerala HC (2020)

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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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941

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WP(C).No.12588 OF 2019(W)

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PETITIONER:

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NATIONAL COMMERCIAL AND GENERAL WORKERS UNION, INTUC, REG NO. 12-13/95 AF NO. 5452, COURT ROAD, KOZHIKODE-1, REPRESENTED BY ITS GENERAL SECRETARY, M.P. JANARDHANAN.

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BY ADVS. SMT.O.A.NURIYA SRI.K.P.SUFIYAN

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RESPONDENTS:

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1 THE LABOUR COMMISSIONER, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN: 695 003. 2 THE JOINT REGIONAL LABOUR COMMISSIONER, NORTH ZONE, CIVIL STATION, KOZHIKODE, PIN: 673 020.

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3 THE DISTRICT LABOUR OFFICER, KOYILANDI, KOZHIKODE, PIN: 673 020.

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4 THE PLANTATION CORPORATION OF KERALA, REPRESENTED BY ITS MANAGING DIRECTOR, MUTTAMBALAM.P.O., KOTTAYAM, PIN: 686 001.

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5 THE MANAGER, PLANTATION CORPORATION OF KERALA, PERAMBRA ESTATE, MUTHUKAD P.O., KOZHIKODE, PIN: 673 528.

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6 THE PERAMBRA ESTATE LABOUR CENTRE, REPRESENTED BY ITS SECRETARY, VIJU.C.D.,

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P.O.MUTHUKAD, PERUVANNAMOOZHY, PERAMBRA, KOZHIKODE-673 528. ADDL. 7 CITU LABOR UNION PCK, PERAMBRA ESTATE, REPRESENTED BY ITS SECRETARY, K.SUNIL, KALUNGHAL HOUSE, MUTHUKKAD P.O, PERUVANNAMOOZHY, PERAMBRA, KOZHIKODE-673528. ADDL. 8 AITUC UNION PCK, PERAMBRA ESTATE, REPRESENTED BY ITS GENERAL SECRETARY, PREM RAJ, KANNIPOYIL HOUSE, MUTHUKAD P.O, PERUVANNAMOOZHI VIA-673528, KOZHIKODE. (ADDL.R7 AND R8 ARE IMPLEADED AS PER ORDER DATED 19.6.2019 IN IA.NO.1/2019) R1-3 BY GOVERNMENT PLEADER R4 BY ADV. SRI.N.RAJESH R6 BY ADV. SRI.RAJU SEBASTIAN VADAKKEKKARA SRI. RON BASTIAN, GP SRI. N.RAJESH - SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.12588/2019(W)

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JUDGMENT

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The Plantation Corporation of Kerala Ltd. is a Government owned Company formed by the Government of Kerala in the year 1962. It has numerous estates as well as factories extending across the length and breadth of the State. The Corporation has a group of estates in the northern part of Kerala known as ‘Malabar Group’. In the said Group, there is one estate by name ‘Perambra Estate’. The total strength of workers in the said Estate is 292. The entire disputes in the Writ Petition revolves around a referendum which was proposed to be conducted in the Perambra Estate.

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The petitioner herein is the National Commercial and General Workers Union (INTUC) and it is a registered Union. They have presence in the Perambra Estate and during the referendum conducted in the year 2009 in tune with the provisions of the Kerala Recognition of Trade Union Act, 2010 (‘Act 16 of 2010’, for short), they secured 29.50% of votes. However, as per section 9 of Act 16 of 2010, the recognition granted to a trade union shall be operative only for a period of three years from the

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date on which such recognition was granted by the employer.

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According to the petitioner, a Writ Petition was filed by the 6^th respondent herein, which is a rival union, before this Court and this Court had directed the 1^st respondent herein to conduct a referendum in the Perambra Estate in accordance with law. Immediately thereafter, the 2^nd respondent appointed a Returning Officer for conducting a referendum for Perambra Estate. It is contended that the 4^th respondent has as many as 11 estates and 4 factories and the conduct of referendum limiting it to Perambra Estate alone is illegal and against the provisions of the Act 16 of 2010 and the Rules frames thereunder. To substantiate the said contention

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it is contended that under the provisions of Act 16 of 2010, Industrial Establishment has been given the same meaning as in clause 2(ka) of the Industrial Disputes Act, 1947 and hence the referendum will have to be conducted in all the estates and factories simultaneously. It is further contended that the 2^nd respondent issued notice to the petitioner asking them to submit application for recognition so as to participate in the referendum. However, the notice was addressed to the General Secretary of the petitioner and not to the President. The General Secretary did not respond to the said request of the 2^nd respondent to apply for recognition. This came to the notice of the President only later. However, a

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representation was filed by the General Secretary before the 2^nd respondent to reconsider the application seeking recognition. Seeking expeditious disposal of the said application, the President of the petitioner preferred W.P.(C) No.11117 of 2019 and the same is pending. It is in the above backdrop that this petition is preferred by the General Secretary of the Union seeking the following reliefs:

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i) To call for records leading to Ext.P3 proceedings of the 2^nd respondent and set aside the same.

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ii) to issue a writ of mandamus or other appropriate writ or direction commanding the 2^nd respondent to conduct referendum amongst trade unions in all estates and factories of 4^th respondent Corporation as expeditiously as possible

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iii) To declare that conducting of referendum to Perambra Estate alone by 2^nd respondent will be in violation of Ext.P2 judgment and ultravires the Kerala Recognition of Trade Union Act, 2010 and Kerala Recognition of Trade Union Rules, 2011.

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The respondents 4 and 5 have filed a statement contending that the Writ Petition is misconceived. It is pointed out that pursuant to the directions issued by this Court and in terms of the provisions of Act 16 of 2010, the 2^nd respondent issued notices to all the Trade Unions

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functioning in the Perambra Estate directing them to file application for recognition to enable them to be recognized under section 9 of the Act 16 of 2010 and to participate in the referendum. The petitioner failed to respond to the said notice. Thereafter, registered notice was issued to the petitioner and though the same was received, the petitioner failed to submit the application. Thereafter, the President of the petitioner Union filed a Writ Petition contending that their request to participate in the referendum to be conducted in the Perambra Estate of the Corporation has not been considered and sought for directions. During the pendency of the Writ Petition, the said application was considered by the 2^nd respondent and the same was rejected. The said order has not been challenged by the petitioner. If that be the case, the petitioner cannot raise a contention that the referendum, which is proposed to be conducted on unit basis at the Perambra Estate, is against the provisions of the statute. It is further contended that the previous referendum was conducted on 30.10.2009 taking each individual estates as units. Pursuant to the referendum so conducted, the Chief Returning Officer has issued Ext.R2(a) circular giving the details of Recognized Trade Unions in each of the Units taken for the purpose of granting recognition. It is on the basis of the referendum so conducted, the Trade Unions which received the

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WP(C).No.12588/2019(W)

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most number of votes, being more than 50% was recognized as sole bargaining agent and those Trade Unions which secured more than 15% of votes was conferred with the rights of a recognized Trade Union and they are entitled as per the provisions of the Act 16 of 2010 to be party to any settlement arrived at between the management and the workers. Referring to Ext.R2(a) circular, it is pointed out that the petitioner herein has presence only in the Perambra Estate and if that be the case, the contention that the referendum has to be conducted amongst all Trade Unions in all Estates and Factories of the 4^th respondent Corporation cannot have any significance insofar as the petitioner is concerned. According to the said respondents, Section 2(ka) of the Industrial Disputes

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Act, 1947 enables an individual establishment to be an industrial establishment or undertaking and this is what was followed in the referendum which was conducted in the year 2009 in the various units of the 4^th respondent. There is no reason to depart from the said procedure, contends the respondents 4 and 5.

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The 6^th respondent has filed a counter affidavit wherein it is stated that the said respondent started functioning in the Perambra Estate after the last referendum and hence had not taken registration under Section 8 of the Trade Union Act. They therefore, approached this Court

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seeking registration and also sought for deferring the referendum proposed to be conducted. By Ext.R6(a) judgment, this Court had granted the prayer. According to the respondent, after obtaining registration, they filed a representation to conduct the referendum in an expeditious manner since recognition of a Trade Union is valid only for a period of three years from the date on which recognition is granted by the employer as per Section 9(3) of the Act 16 of 2010. It was in the aforesaid circumstances that they had approached this Court and had filed W.P.(C) No.40108/2018. This Court had directed the official respondents to conduct the referendum expeditiously. In terms of the said directions, though notice was issued to the petitioner asking them to submit applications, they refused to do so. Thereafter, by proceedings dated 30.3.2019, the 2^nd respondent has issued notification for referendum and the final voters list has been published. It is thereafter that the petitioner has approached this Court by filing W.P.(C) No.11117/2019 seeking a direction to the 2^nd respondent to consider their application for recognition. The same having been rejected, the petitioner has no right to participate in the referendum. Being aggrieved by the above fact, the petitioner has approached this Court by filing this Writ Petition on frivolous grounds. It is further contended that the previous referendum was conducted in the year 2009 and the precedent in the 4^th

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WP(C).No.12588/2019(W)

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respondent is to conduct Estate wise referendum every three years. If the same is delayed further, the collective bargaining right of the workers would suffer. Since the Corporation has Estates and Factories through out Kerala, the referendum is conducted in each of the Estates and the same is not illegal nor is it against the provisions of the Act 16 of 2010.

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The 1^st respondent has filed a statement contending that unit wise referendum is better for good administration and the same procedure is adopted in other establishment as well. It is pointed out that referendum can be conducted in any industry or classes of industries and the Board of Directors of Plantation Corporation of Kerala has given their consent to the Estates for conducting unit wise referendum.

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I have considered the submissions. In the case on hand, pursuant to orders passed by this Court, the 2^nd respondent had issued letters to the Trade Unions functioning in the Perambra Estate to submit their application under Section 4 of the Act 16 of 2010. All other Unions except the petitioner responded to the said request. The 2^nd respondent then issued a registered letter inviting the petitioner to submit application. However, it did not evoke any response. Thereafter, the petitioner through its President filed W.P.(C) No. 11117/2019 contending that the petitioner

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could not respond to the letter issued by the 2^nd respondent inviting them to submit application for recognition under Section 4 of the Act 16 of 2010 in order to participate in the referendum proposed to be conducted in the Perambra Estate. Their prayer in the Writ Petition was to direct the 2^nd respondent to consider the representation filed by the petitioner to participate in the referendum. During the pendency of the Writ Petition, the representation filed by the petitioner before the 2^nd respondent was rejected. This fact is admitted by the learned counsel appearing for the petitioner. The said order has not been subjected to any challenge. It is during the pendency of the earlier Writ Petition and before the passing of the order rejecting their request to reconsider the application for recognition that the instant Writ Petition was filed seeking inter alia to quash Ext.P3 and also for a direction to the 2^nd respondent to conduct referendum in all the Estates and Factories of the 4^th respondent Corporation. The sequence of events would show that the petitioner has no consistent case and their intent is only to protract the process which has been initiated as per the directions of this Court. Having considered the facts, I am of the considered opinion that the petitioner has not made out any ground for quashing Ext.P3 order.

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The second relief sought for by the petitioner is for a direction

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to the 2^nd respondent to conduct referendum amongst the Trade Unions in all the Estates and factories of the 4^th respondent Corporation. The 1^st respondent as well as respondents 4 and 5 have contended in their Statements that unit wise referendum has been the precedent in the Plantation Corporation of Kerala. This fact is evident from Ext.R2(a) circular issued by the Chief Returning Officer as per which, certain Trade Unions have been recognized as bargaining agents after conduct of the referendum in the year 2009. I find from Ext.R2(a) that the petitioner had presence only in the Perambra Estate and nowhere else. The recognition granted towards Trade Union is only for a period of 3 years from the date on which recognition is granted by the employer as is evident from section

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9 of the Act 16 of 2010. The petitioner having failed to apply for recognition cannot be heard to contend that the referendum proposed to be conducted is illegal. The sequence of events would also show that the petitioner is blowing hot and cold at the same time as the relief sought for in W.P.(C) No.11117/2019 was that they are eager to participate in the referendum to be held at Perambra and that their request be considered by the 2^nd respondent. In the instant case, diametrically opposite contentions are raised.

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Even otherwise, the contention of the learned counsel that

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referendum has to be conducted in all the estates and factories simultaneously and not in the Perambra estate cannot be accepted. A close reading of section 2 (ka) of the Industrial Disputes Act, would reveal that even a unit can be taken to be an industrial Establishment if the conditions are satisfied. After having failed to apply for recognition and after having failed to challenge the order refusing their request to participate in the referendum, it is evident that the intention of the petitioner is to delay the referendum which was ordered to be held by this Court. Having considered all the relevant facts, I am of the considered opinion that the petitioner has not made out any case for interference.

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This Writ Petition will stand dismissed.

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Sd/RAJA VIJAYARAGHAVAN V. JUDGE

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WP(C).No.12588/2019(W)

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APPENDIX OF WP(C) 12588/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE DEPUTY REGISTRAR OF TRADE UNIONS (KERALA STATE), DATED 20.10.1995.

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EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 19.12.2018 IN WP(C) NO. 40108 OF 2018 THIS HONBLE COURT.

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EXHIBIT P3 TRUE COPY OF PROCEEDINGS OF 2ND RESPONDENT DATED 27.02.2019.

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EXHIBIT P3(a)

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TRUE COPY OF ENGLISH TRANSLATION OF PROCEEDINGS OF 2ND RESPONDENT DATED 27.02.2019.

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RESPONDENTS EXHIBITS:

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EXHIBIT R6(a): TRUE COPY OF THE JUDGMENT IN WPC.NO.2008/2017 DATED 19/01/2017.

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EXHIBIT R6(b): TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED IN THE NAME OF THE 6TH RESPONDENT UNION BY THE DEPUTY REGISTRAR OF TRADE UNIONS, DATED 10/04/2017.

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EXHIBIT R6(c): TRUE COPY OF THE COPY OF THE APPLICATION FOR RECOGNITION OF TRADE UNION DATED 17/11/2017.

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EXHIBIT R6(d): TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT LABOUR COMMISSIONER BY THE 6TH RESPONDENT UNION DATED 17/11/2017.

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WP(C).No.12588/2019(W)

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EXHIBIT R6(e): TRUE COPY OF THE COMMUNICATION ADDRESSED BY THE 1ST RESPONDENT REGISTRAR OF TRADE UNION AND LABOUR COMMISSI0NER TO THE 6TH RESPONDENT REGIONAL JOINT LABOUR COMMISSIONER, NORTH ZONE KOZHIKODE DATED 30/08/2018. EXHIBIT R6(f): TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 27/02/2019. EXHIBIT R6(g): TRUE COPY OF THE NOTICE ISSUED TO THE UNIONS BY THE RETURNING OFFICER DATED 14/03/2019. EXHIBIT R6(h): TRUE COPY OF THE NOTIFICATION TO REFERENDUM DATED 30/03/2019. EXHIBIT R6(i): TRUE COPY OF THE VOTERS LIST DATED 30/03/2019. EXHIBIT R2(a): TRUE COPY OF CIRCULAR BEARING NO.PD/PA/5091, DATED 31.10.2009 ISSUED BY THE CHIEF RETURNING OFFICER.

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SR //True Copy// PA to Judge

National Commercial and General Workers Union v. the Labour Commissioner

Case brief

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National Commercial and General Workers Union v. the Labour Commissioner

Case brief

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