Dismissed

Fact Workers Organisation, v. Fertilizers and Chemicals Travancore Limited

Kerala HC30 May 2022WP(C)/15901/2022

Case brief

AI extract

What is this about?

The high court directed the regional joint labour commissioner to take steps to conduct a secret ballot referendum among employees of Fertilizers and Chemicals Travancore Limited to recognize trade unions, adhering to Supreme Court guidelines for public sector undertakings.

What did the court decide?

The writ petition was disposed of with directions to the 2nd respondent to decide on the representation and conduct the referendum within two months.

Fact Workers Organisation, Vs Fertilizers and… — Service and Employment | Kerala HC (2022)

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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 AMIT RAWAL

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MONDAY, THE 30TH DAY OF MAY 2022 / 9TH JYAISHTA, 1944
WP(C) NO. 15901 OF 2022

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PETITIONER:

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FACT WORKERS ORGANISATION,
REG. NO. 07-43/95, UDYOGAMANDAL, ERNAKULAM 683 501,
REPRESENTED BY ITS GENERAL SECRETARY.

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BY ADVS.
R.SANJITH
ANOOP GEORGE
P.S.ANJU
SURAJ KRISHNAN
C.S.SINDHU KRISHNAH

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RESPONDENTS:

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1 FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.

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2 THE CHAIRMAN AND MANAGING DIRECTOR, FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501.

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3 CHIEF GENERAL MANAGER (HR &A), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501.

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4 REGIONAL JOINT LABOUR COMMISSIONER (CENTRAL), OFFICE OF THE REGIONAL COMMISSIONER (CENTRAL), OLIMUGHAL, VAYUSENA ROAD, THRIKKAKKARA, KAKKANAD, ERNAKULAM.

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5 FACT EMPLOYEES ASSOCIATION (CITU), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501. REPRESENTED BY ITS GENERAL SECRETARY.

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6 FACT WORKERS UNION, FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501. REPRESENTED BY ITS GENERAL SECRETARY.

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7 FACT EMPLOYEES CONGRESS (INTUC), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL , ERNAKULAM 683 501. REPRESENTED BY ITS GENERAL SECRETARY.

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8 FACT EMPLOYEES ORGANISATION (BMS), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM 683 501. REPRESENTED BY ITS GENERAL SECRETARY.

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9 FACT (CD) EMPLOYEES ASSOCIATION. FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALUMEDU P.O, ERNAKULAM 682 303. REPRESENTED BY ITS GENERAL SECRETARY.

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10 FACT (CD) EMPLOYEES SANGH, FERTLISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALAMEDU P.O, ERNAKULAM 682 303. REPRESENTED BY ITS GENERAL SECRETARY.

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11 FACT (CD) WORKERS CONGRESS (INTUC), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALAMEDU P.O, ERNAKULAM 682 303. REPRESENTED BY ITS GENERAL SECRETARY.

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OTHER PRESENT:

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SRI.MANU S., ASGI
SRI.M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.05.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 15901 OF 2022 -3-

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JUDGMENT

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Petitioner, FACT Workers organization, registered under the Trade Unions Act have approached this court with the following prayers:

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“i) To issue a writ of mandamus and command the respondents 1 to 3 to take steps to conduct trade union referendum at corporate level by way of secret ballot and grant recognition only to those trade unions which secure 20% votes as a recognized bargaining agent of the workmen, within a time frame to be fixed by this Honourable Court.

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ii) To issue a writ of mandamus and command the 4^th respondent to act as an independent observer for conducting a corporate level referendum at the 1^st respondent as contemplated in Exhibit P2.

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iii) To pass any other and such other orders as this Honourable Court deem fit to pass in the nature and circumstance of the case.

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iv) To award the cost of this proceedings to the petitioners.”

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The contention of the petitioner is that since

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the respondent is the Central Government the procedure

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for recognition of the Trade Union is different than the one prescribed under the Kerala Recognition of Trade Unions Act, 2010. There was a situation of not holding a referendum entitling the management and the representatives of the workers for the purpose of the negotiations etc. A controversy of similar nature came to be pondered by Supreme Court in Food Corporation of India Staff Union Vs. Food Corporation of India and others (1995 KHC 583) wherein noticing the fact that an undertaking where there are more than one registered trade union the question which arose for ponderance was “which of the Trade Unions claiming a right would have the representation of the workmen employees for the purpose of settlement, negotiations etc.”, so that it may not destruct the industrial scheme. Keeping in view that predicament, in paragraph No.4 of the judgment issued comprehensive directions. In this case also when no referendum was conducted by the respondents, petitioner organization approached this Court vide O.P.No.20083/1995. This Court vide

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judgment dated 07.07.1997 directed the respondents to hold the referendum among the employees. In view of the aforementioned directions the referendum was conducted and thereafter nothing was done. The Trade Unions had in their meeting held on 04.05.2022 passed resolution for conducting a referendum for recognition and in view that, submitted a representation Ext.P4 dated 10.03.2022 to the Chairman and the Managing Director of Fertilizers and Chemicals of Travancore Limited for holding the referendum, but no action has been taken and therefore present writ petition.

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Standing counsel for respondents 1 to 3 accepts notice and submits that the respondents would not be averse in taking a call on the representation based upon the position of law and financial position of the respondents.

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I have heard learned counsel for the parties and appraised the paper books.

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Conceded facts are that petitioner is a registered Society and there are eight other trade

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unions. The Kerala Trade Union Act, 2010 provides that recognition would not be applicable as the respondent management is a public sector undertaking and it is under control of the Central Government. Matters pertaining to the offices of the Central Government i.e., Food Corporation of India has already been pondered by the Supreme Court in the judgment cited supra wherein paragraph No.4 following directions were issued.

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“4. We have perused the aforesaid documents. We direct that the following norms and procedure shall be followed for assessing the representative character of trade unions by the "secret ballot system"

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(i) As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC)

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(ii) The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour.

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(iii) The CLC shall fix the month of election

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while the actual date/dates of election shall be fixed by the Returning Officer

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(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 bome 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

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(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.

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(vi) The FCI shall make necessary arrangement to:

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(a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice board and also at other conspicuous places for the information of all the workers:

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(b) print requisite number of ballot papers in the pro forma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions:

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WP(C) NO. 15901 OF 2022 -8-

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(c) the ballot papers would be prepared in the pro forma prescribed by the CLC in Hindi/English and the concerned regional language;

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(d) set up requisite number of polling stations and booths near the premises where the workers normally work; and

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(e) provide ballot boxes with requisite stationery, boards, sealing wax etc.

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(vii) The Returning Officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling 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.

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(viii) The election schedule indicating the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results, shall be prepared and notified by the Returning Officer in consultation 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

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(ix) To be eligible for participating in the election, the unions must have valid registration

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under the Trade Unions Act, 1926 for one year with an existing valid registration or the first day of filing of nomination.

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(x) The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer

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(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 voters' list and advise him thereafter to procure the secret ballot paper from the Presiding Officer

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(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

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(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

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(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 representative 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

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(xv) The contesting unions through their representatives present at the counting place may be allowed to file applications for recounting 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 recounting. However, no application for recounting shall be entertained after the results of the votes are declared.

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(xvi) The result of voting shall be compiled 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

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presence.

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(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

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(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.

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(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 dispose of within 30 days of the filing of the same. The decision of the CLC shall be final subject to before a competent court, if permitted under law.”

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Keeping in view that background, petitioner had approached this Court in 1997 as evident from order Ext.P1 and this Court had in paragraph No.2 passed the following directions:

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“ 2. A counter-affidavit has been filed in both the cases on behalf of the first respondent.

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The uniform contention urged by the first respondent in the said counter-affidavit is as follows:

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"However, this respondent does not have any objection as to referendum to be conducted for recognition of bargaining agents for a period of 5 years and recognising the unions securing a minimum of 20% or more votes of the total electorate provided the said referendum is conducted by the second respondent and the result intimated to this respondent as done in the case of previous referendum."

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In view of the above stand taken by the first respondent it is unnecessary to go into other questions raised in these writ petitions. The competent authority to hold the referendum is the 2nd respondent. I therefore direct the 2nd respondent, the Regional Joint Labour Commissioner, Kakkanad, Ernakulam to hold a referendum among the employees in the Petro Chemical Division of the Fertilizers and Chemcials Travancore Limited (F.A.C.T.). The 2nd Respondent shall hold such referendum as expeditiously as possible, at any rate, within a period of three months from today and inform the result to the first respondent accordingly. The Original Petition is disposed of as above.”

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After this, one of the Trade Unions was

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recognized but the validity of the same expired and thereafter no such referendum was conducted. I am of the view that it is a fit case where directions are required to be issued to the respondents to take a call on the representation for holding the referendum as early as possible. 2^nd respondent is therefore directed to take a call on the representation in accordance with the directions and the judgment of the Supreme Court and judgments passed by this Court in Ext.P1, by affording an opportunity to all the trade unions registered under the Trade Unions Act and recognized by the respondents. Let this exercise be undertaken within a period of two months from the date of receipt of a certified copy of the judgment.

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Writ petition stands disposed off.

Sd/-

AMIT RAWAL

JUDGE

vv

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APPENDIX OF WP(C) 15901/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE JUDGMENT DATED
07.07.1997 IN O.P. NO. 20083/1995 OF
THIS HON'BLE COURT.

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Exhibit P2TRUE COPY OF THE ORDER DATED
19.01.2009 BEARING NO. 1(2) 17573/OS
OF THE STATE LABOUR COMMISSIONER,
THIRUVANANTHAPURAM.

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Exhibit P3TRUE COPY OF THE MINUTES OF THE
DECISION HELD ON 04.04.2022 IN THE
MEETING BETWEEN THE MANAGEMENT AND THE
TRADE UNIONS REPRESENTING WORKMEN OF
ALL DIVISIONS OF THE COMPANY.

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Exhibit P4TRUE COPY OF THE REPRESENTATION DATED
10.03.2022 PREFERRED BY THE PETITIONER
TO THE RESPONDENT.

Fact Workers Organisation, v. Fertilizers and Chemicals Travancore Limited

Case brief

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Fact Workers Organisation, v. Fertilizers and Chemicals Travancore Limited

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