Tamil Nadu Nugarporul Vaniba Kazhaga Vs The Managing Director

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certorarified Mandamus, to call for the records of the respondent herein pertaining to the impugned notice No. Na.Ka.No.ALP3/57217/2019 dated 15.11.2022 quash that portion of the notice including the seasonal workers as voters in the election to recognize trade union and to direct the respondent herein to conduct the election with permanent workers alone as the voters to grant recognition to trade unions

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in the respondent corporation.

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For Petitioner : G.Purusothaman

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For Respondent : Mr.C.Selvaraj, Senior Counsel for R1 : Mr.N.Vishsanth for R2

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ORDER

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This writ petition has been filed to call for the records of the respondent for the notice No. Na.Ka.No.ALP/3/57217/2019 dated 15.11.2022, to quash the portion of notice including the seasonal workers as voters to recognize the trade union and to direct the respondent to conduct the election with permanent workers alone as the voters to grant recognition to the trade unions in the respondent corporation.

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The learned counsel appearing for the petitioner would submit that

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the first respondent issued the impugned notice dated 15.11.2022, permitting seasonal workers to cast their votes in the election for recognition of trade unions in the respondent corporation. In fact, no election for recognition of trade unions had been conducted in the respondent corporation except for the first one held in the year 2009. Subsequently, no election was conducted so far. If any union who secured more than 50% of the votes, then that union alone will be considered as the recognized union

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and will be entitled to all facilities including protection under Section 33(C) of the Industrial Disputes Act. There are two three types of workers in the corporation. They are permanent workers, seasonal workers and loadmen. The seasonal workers who are engaged only on a consolidated pay basis, cannot be equated with permanent employees. There was already a dispute between the petitioner's union and the TNCSC Employees Union regarding recognition, which attained finality through the order of this Court in W.A.No.583 of 2000 dated 25.02.2009, wherein the respondent was directed to recognize the trade unions. It was also held that elections for recognition must be conducted once in five years. In this regard, the respondent issued notice dated 13.11.2014, calling for particulars from all existing unions in the corporation for the purpose of grant of recognition to trade unions. Some unions challenged the said notice in W.P.No.1633 of 2015 and 15464 of 2015, seeking inclusion of loadmen as voters. However, no election was conducted in 2014 and the above said writ petitions were dismissed by this Court through order dated 28.11.2019.

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2.1. By this impugned notice, the respondent has included seasonal

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workmen along with permanent workmen in the voters list for recognition

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of trade unions. The seasonal workers are engaged only during the procurement period for about three months in a year, and are paid solely on a consolidated basis. Therefore, they cannot be considered as 'workmen' for the purpose of trade union recognition. Therefore, including them in the voter list is contrary to law. It is further submitted that the permanent employees number about 7,000, whereas the seasonal workers are substantial in number, around 5,500, and their inclusion would become the determining factor in grant of recognition to trade union cannot be accepted. The Hon'ble Supreme Court, in the case of Food Corporation of India, has categorically held that seasonal workers are to be excluded from voting in elections for recognition of trade unions, and the same has to be followed by the respondent corporation also. Similarly, in the case of Neyveli Lignite Corporation Ltd., contract employees were excluded from voting in the election for recognition of the trade unions. Therefore, the impugned order is liable to be quashed.

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The learned counsel appearing for the first respondent would submit that all the trade unions have included the seasonal workers as members, and the seasonal workers have also been paying union subscriptions. The first respondent has been deducting such subscriptions directly from their salaries. Therefore, being members of the trade unions,

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the seasonal workers are entitled to exercise their right to vote. Moreover,

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in the last election, the seasonal employees were also participated in the election and their names were also included in the voters list. At that time, the petitioner did not raise any objection and now having participated in the election. Now only to delay the election announced by the first respondent, this writ petition has been filed by the petitioner. Further, the Government, through its letter dated 18.04.2009, clarified to the first respondent that as per the clarification, unions subscriptions are being deducted from salaries of the employees irrespective of the cadre. In as much as the purpose of the proposed election is to assess the representative character of the trade unions of the corporation Class I and II category of the regular employees and the seasonal employees who are also members of the trade union of the said corporation have to be allowed to cast their vote in the ensuing election. Based on the aforesaid Government letter, in the previous election, the seasonal employees were also participated. Moreover, this Court had already directed the first respondent to complete the election process. The present writ petition has therefore been filed only with the intention to delay the election proceedings without any merits and therefore the petition is liable to be dismissed.

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The learned counsel appearing for the second respondent reiterated

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the arguments of the first respondent and submitted that since seasonal employees have also been paying subscriptions as members of the trade unions, they are entitled to cast their votes. The petitioner/union having already participated in the election process cannot now file this petition only to stop the election. As per the relevant provisions, seasonal employees also employees of the TNCSC, and therefore they are entitled to participate in the election. Therefore, there is no merits in this case and the petition is liable to be dismissed.

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This Court heard both sides and perused the materials available on

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record.

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In this case, the point to be decided is whether the seasonal employees can be permitted to cast their votes or not. It is an admitted fact that the petitioner participated in the previous election in the year 2019, wherein the seasonal employees were also permitted to cast their votes. At that time, the petitioner did not raise any objection in the previous election. Having accepted the inclusion of seasonal workers in the voters list in the earlier election, the petitioner cannot now dispute their inclusion in the present election. The Government has also issued a clarification to the authorities by including the seasonal workers in the voters list. It is relevant

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to rely upon the judgment in Srinivasa Rao & Others Vs The Commissioner of of 2010(2) U.P.L.J. 166 (HC) at Hyderabad, wherein it was held that the word “workmen” under the Trade Unions Act includes all persons employed in a trade or industry it is not a restricted definition as in any other enactment of labour laws”. Therefore, the case on hand also comes under the definition of 'workmen' under the Trade Union Act.

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Once the petitioner accepted the earlier election wherein seasonal

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workers were included in the voters list, he is estopped from raising a dispute at this stage. Therefore, this seasonal worker comes under the definition of workmen, hence the prayer sought for in this writ petition cannot be granted and there is no any infirmity in the impugned notice. More over, the impugned order is in respect of conduct of election and the acknowledgment of the verification officer. Therefore , any question of disqualification of the verification officer, if at all, can be dealt with separately and cannot be raised in the present proceedings.

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