Union Of India vs Rail Coach Factory Men'S Union on 30 January, 2012
* THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 550 OF 2010
Reserved on: 01.11.2011
% Pronounced on: 30.01.2012
UNION OF INDIA ... APPELLANT
Through: Mr. Jagjit Singh, Advocate.
VERSUS
RAIL COACH FACTORY MEN'S UNION . . . RESPONDENT
Through: Dr. Aman Hingorani, Advocate with
Ms. Swati Sumbly, Advocate.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, ACTING CHIEF JUSTICE
1. The respondent herein is a trade union of workers of Railway Coach
Factory (RCF), Kapurthala. It is duly registered under the Indian Trade
Unions Act, 1926 and is affiliated to the All India Railwaymen‟s Federation
(AIRF), New Delhi as also to the Hind Mazdoor Sabha, Mumbai.
2. The Railway Coach Factory workers are the members of the
respondent union which is treated at par with the Railway Production Units
(RPUs). Though in respect of Zonal Railways, the Ministry of Railway
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(Central) has the policy for recognition of unions based on secret ballot,
though this system is not available in RPUs.
3. Chapter XXV of the Indian Railway Establishment Manual, Volume-
II (IREM) provides for „Rules for the Recognition of Service Associations
of Railway Servants‟. As per Rule 2503 „Every gazetted Railway servant of
the same class must be eligible for membership of the association‟. Rule
2510 which is relevant in this behalf reads as under:
"2510.Government is prepared to accord official
recognition to associations of its industrial
employees. The grant and continuance of
recognition rests in the discretion of Government,
but recognition when granted will not be withdrawn
without due cause and without giving an
opportunity, to the association to show cause
against such withdrawal."
As per this rule, the Government agreed to accord official recognition
to Associations of its „industrial employees‟. The term „industrial
employees‟ includes the railway servant. In all Central Government
Ministries and Departments including the Railways, Joint Consultative
Machinery (JCM) has been set up. This is existing since 1966. Clause-II of
the Scheme for JCM provided that it would "supplement and not replace
the facilities provided to employees to make only representations, or the
associations of employees to make representation of matters concerning
their respective constituent service grade etc". In this JCM, the
representatives of the recognized Unions participate on behalf of the
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employees. As pointed out above, these recognized unions are in Zonal
Offices.
Insofar as Railway Production Units are concerned, there is no system
of recognition of trade unions. Instead only Staff Councils are allowed to
represent the cause of the workers and trade unions are not permitted. As
per the appellant, the system of Staff Council was introduced in 1954 and
subsequently approved by the Cabinet, Govt. of India in the year 1967.
Pursuant to the system, the appellant shows one post of Zonal Secretary
belonging to each recognized association at the production units.
Chapter XXVI of the IREM deals with „Staff Council and Negotiating
Machinery‟. Rule 2616 falling in this Chapter provides for the detailed
procedure for the working of the negotiating machinery. Since RCF,
Kapurthala is treated as part of RPUs, the appellant has allowed only Staff
Council to represent cause of the workers As pointed out above, as per the
appellant this system was introduced in the year 1954 and approved by the
Cabinet in the year 1967. The appellant also maintains that since its
inception, the Staff Council has worked properly and efficiently and at no
point of time there has been any allegation that on account of mechanism of
Staff Council, genuine grievances of workmen employed in the production
units have not been redressed to the entire satisfaction of the employees and
in the public interest. The Staff Council is comprised of members directly
elected by workers themselves, to represent the grievances and interest
through regular meetings with the local management at local level, they also
hold meeting with the Board once a year where policy as well as the issues
of common concern for the employees are taken up, discussed threadbare
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and ways and means are devised to sort them out amicably and peacefully.
It is also claimed that as far as mechanism is concerned, its efficiency and
efficacy has never been in doubt and even the respondent does not make
any such allegations about the efficacious functioning of the Staff Council
system.
4. The respondent was aggrieved by the fact that why there should not
be a system of recognition of trade unions in the Railway Production Units.
The respondent thus filed writ petition under Article 226 of the Constitution
of India before this Court which was registered as Writ Petition (C) No. 26
of 2008. The following reliefs were claimed by the respondent in the said
writ petition:-
"(a) Issue an appropriate Writ Order of Direction, and in
particular
(i) A Writ of Mandamus requiring the Respondent to
recognize the registered trade unions in the Railways
Production Units as Railway Trade Unions.
(ii) A Writ of Mandamus directing the Respondent of
extend to the Railway Production Units the
application of Modalities published on 09.10.2007
for conducting "Secret Ballot" for the purpose of
granting recognition to the Railway Trade Unions."
5. The appellant herein contested the aforesaid petition by filing its
counter affidavit. The matter was finally argued on 29th January, 2010 when
the orders were reserved which was pronounced on 3rd March, 2010. The
learned Single Judge allowed the writ petition and issued the writ of
mandamus directing the appellant herein to apply the modalities for
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recognition spelt out in the Circular dated 9th October, 2007 to the RPU,
Kapurthala as well and permit the respondent union to participate in the
„secret ballot‟ for determining which railway unions should be accorded
recognition and consequently granted representation in the JCM.
6. At the time of hearing the appellant had relied upon the Union Cabinet
decision dated 26th May, 1967 for retaining the Staff Council in the RPUs
and in this decision it was also stated that the Railway Board would
examine further the question about the future set up in the due course.
According to the respondent, it could not be pointed out as to whether any
further decision in this behalf was taken at the time of arguments. However,
after the judgment was reserved the officials of the appellant could lay hands
on the decision of the Railway Board taken in the year 1988 and 1996 where
the question of continuance of staff council was taken up and it was decided
by the Railway Board to continue existing system of staff council in all the
six production units of the Indian Railways. However, by the time the
affidavit was prepared, the judgment was pronounced. The appellant,
therefore, based on the aforesaid material, filed review petition, the Learned
Single Judge has, however, dismissed the review petition as well vide orders
dated 18th May, 2010.
7. Assailing both these orders dated 3rd march, 2010 passed in the writ
petition and 18th may, 2010 passed in the review petition, present intra-court
Appeal is preferred by the appellants.
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THE SCOPE OF CONTROVERSY:
8. From the facts narrated above, it is clear that whereas the system of
recognition of railway unions is prevalent in the Zonal Offices of
recognized unions are allowed to participate in the JCM, insofar as
production units are concerned, the Railways has the system of staff
Council. These Staff Council take up the legal issues pertaining to their
respective production units and have no representation in the JCM which
functions on all India basis. The respondent union is, thus, aggrieved by
the action of the appellant in excluding them from „secret ballot‟ and
recognition and for this reason, prayer was made in the writ petition to
extend the modalities for conducting secret ballot as provided in Circular
dated 9th October, 2007 to the Railway Production Units as well. The case
of the respondent was that the Indian Railway Code for Mechanical
Department (Workshops) has specific provisions concerning Railway
Production Units. In terms of the said Code, RPUs are treated at par with
"Mechanical Departments (Workshops)". Clause 1302 of Chapter XIII of
the Code makes it clear that the provisions of the Code that apply to
Workshops (such as organizational set up, labour etc.) apply mutatis
mutandis to RPUs. It is pointed out that by Circulars dated 29 th August,
1997 and 15th September, 1997 that the Ministry of Railways has granted
facilities to all India OBCs Railway Employees Association and all India
Railway SC/ST Railway Employees Association in the RPUs to take up the
grievances of their members with the Railway Management. It was also
urged that JCM did not exclude Railwaymen in RPUs and that the Staff
Council in the RPUs had been in effective in dealing with the violations of
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the provisions of Minimum Wages Act, 1948 and the Contract Labour
(Regulation & Abolition) Act, 1970. The respondent also pointed that on
26th June, 2002 the Railways had issued instructions to consider the
applications by the affiliates of Bharat Rail Mazdoor Sangh (BRMS) and
others for grant of recognition. In these instructions, it was stipulated that
for grant of such recognition, the concerned union who fulfilled the
condition of at least 30% membership of the non-gazetted employees they
seek to represent as well as certain other conditions. These instructions were
challenged by the Southern Railway Mazdoor Union in WP No.25274/2002
filed in the Madras High Court. The Madras High Court allowed the said
writ petition vide orders dated 17th October, 2003 and set aside the
instructions dated 26th June, 2002 holding that the only feasible and reliable
way of testing the strength of a trade union was to adopt the secret ballot
system and to give up the present system of annual return. The matter was
taken up to the Supreme Court and the Supreme Court upheld the aforesaid
decision of the Madras High Court by dismissing the SLP vide orders dated
8th March, 2004. Pursuant to the aforesaid directions, the respondent
ultimately framed guidelines for secret ballot which was circulated vide
letter dated 9th October, 2007 addressed to all the General Managers of
Indian Railways except the RPUs. On this basis, the respondent union in its
writ petition filed in this Court also claimed that, adoption of "secret ballot"
in compliance with the High Court direction was required to be initiated.
9. The case of the appellant on the other hand is that there is no need to
have any such recognition of the unions insofar as RPUs are concerned
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where separate system of Staff Council is working satisfactorily and these
Staff Council have been set up pursuant to a policy decision of the
Government of India and as approved by the Cabinet as well as Railway
Board on Review of the matter from time to time. It is submitted that the
Cabinet decision of the Government was taken to continue the system of
Staff Council in the production unit in view of the nature of functions of
production units. It is further stated by the appellant that there is no vested
right in the respondent to seek recognition and the Government is well
within its power to decide, as a matter of policy, that Staff Council would be
only mechanism of grievance redressal of the employees in the RPUs and
not trade unions. The policy decision, as per the appellant was based on the
following rational:-
"In case, unions are recognized in Production
Units, these unions would demand representation I
the Department Council of JCM as well as
National Council. Since the number of
representatives of the staff side in both the for a is
limited, representation to unions of Production
Units would be at the cost of Members of the
Federations, which would not be acceptable to the
Federation.
If the system of recognized union in Production
Units is allowed, although the staff of Production
Units consists of around 3% of the total staff
strength of Indian Railways, in all the major
decisions, it may become necessary to associate
unions of Production Units alongwith Federations.
At present the decisions taken for Zonal Railways
is equally binding on Production Units. This is
possible because there are no recognized union in
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Production Units and as such there is no opposition
to the decision taken with Federations."
10. As per the respondent, it has the right to participate in JCM. The
respondent points out that although the JCM envisaged a three-tier
machinery, i.e. National, Departmental and Office/Regional Council, the
third tier of the JCM Scheme in the RPUs was not operationalised.
Notwithstanding the consistent demand by even the federations, the
Railways were maintaining that the demand was not feasible for acceptance.
It was pointed out that there are 7200 Group C and D staff at the RCF,
Kapurthala who constitute the petitioner union and they have fundamental
right to form a trade union and to participate through secret ballot in the
JCM and take the benefit of collective bargaining. It is more so when the
Staff Council is merely an advisory body headed by gazetted officers
nominated by the General Manager, and whose constitution, composition
and rules are at the discretion of the General Manager and subject to
directives of the Government.
JUDGMENT OF THE LD. SINGLE JUDGE:
11. The learned Single Judge, after taking note of the area of dispute and
the respective contention, accepted the legal position that though right to
form a trade union may be a fundamental right under Article 19 (1) (c) of
the Constitution of India, the imposition of conditions for recognition would
not per se be viewed as an unreasonable restriction within the meaning of
Article 19 (4). It is the prerogative of the employer to set out the condition
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for recognition. According to the learned Single Judge, the moot question
was as to whether in the form of Rules of recognition, a union in one part
of the establishment i.e. the RPU can be subject to a differential treatment
as regards the conditions for recognition. It has been observed that the
respondent was aggrieved by the threshold bar imposed on not being even
allowed to participate in the process that would enable it to seek recognition.
The learned Single Judge, thereafter examined the provisions of IREM. It
has been noted that part C of the IREM sets out the conditions precedent to
the recognition of a union by the Railway administration. One is that the
union must be registered under the TU Act. The second is that the union
should agree that the union should agree that "all representations from them
must be through the Central Executive Committee to the General Manager
and representations from branches of the Union must also be made only
through the Central Executive Committee." However, it is open to the
Railway administration by agreement with the union to arrange for matters
relating exclusively to one department to be referred directly to the head of
that department and for matters of purely local interest to be referred by a
branch of the union to a Divisional or District Officer for discussion. The
petitioner fulfills both conditions. In its reply to this assertion, it is sought
to be contended that the IREM does not create any right in favour of the
petitioner "much less a right enforceable by way of the issuance of a writ of
mandamus by this Court." There is absolutely no provision of the IREM
pointed out by the respondents whereby despite a union satisfying the
conditions of part C of the IREM it can be denied recognition. The Court
thus held that IREM does not bring out any distinction between the unions
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and RPUs and other establishments within the Railways unless such a
restriction is spelt out in the IREM itself, the respondent which is a union in
RPUs cannot be discriminated against.
12. The learned Single judge also rejected the distinction sought to be
drawn by the appellant between the RPUs and other workshops. The Court
noted that the distinction given by the appellant was that the product
profile of Production Units, their functioning and establishment are quite
different from Zonal Railway‟s composition, organizational structure and
functioning of staff councils had been kept different and separate from
Zonal Railways recognized unions. It is observed that this can hardly
constitute a rational basis to discriminate against unions in RPUs by
excluding them from the applicability of the modalities set down by the
circular dated 9th October, 2007. Further, this kind of classification of
unions in RPUs separately from other unions, which classification is on the
face of it suspect, has no reasonable nexus with the object of ensuring that
only truly representative trade unions are recognized for participation in the
JCM. Thus, opined the learned Single Judge, that the denial to the
respondent right to participate in the secret ballot for determining whether
it should be accorded recognition cannot be sustained on the touchstone of
Article 14 of the Constitution.
13. Other reason given by the appellant to deny the recognition namely
there is staff council in the RCF, Kapurthala which can be a substitute for a
recognized trade union also did not find favour with the court below. It was
noted that Union Cabinet took a decision on 26th may, 1967 i.e. 40 years
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ago and as per that decision the Railway Board was to examine further the
question about the future setup and the review was to be done as to whether
at the level of Zonal Railways or of the Divisions, the Staff Council should
be abolished, the Review Committee for RCF was not even set up.
14. As pointed out above, at that time, the appellant did not produce
Railway Board decision in the year 1988 and 1996 when such a decision
was taken to continue the Staff Council in RPUs. Be as it may, according to
us, that would not make much difference in view of further solid reason
given by the learned Single Judge that the intention not to grant recognition
to trade unions in the RPUs is not justified and in any event such decision
does not appear to have found expression in any specific provision of the
IREM
PRESENT APPEAL:
15. The arguments advanced before us in the present appeal remain the
same. No doubt, recognition of union is not a right. It is the prerogative of
the employer to recognize a union or not. In the Trade Union Act also there
is no provision for recognition. It is also well established law that when the
Government introduced the system of recognition, it was well within the
rights of the Government to impose conditions for recognition. Such
conditions are not to be treated as unreasonable restriction within the
meaning of Article 19(4) of the Constitution. The question, however, as
rightly delineated by the learned Single Judge is that when the rules of
recognition are provided for zonal railways, whether excluding the RPUs
from the purview thereof would amount to discrimination and would be
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impermissible under Article 14 of the Constitution. In order to justify such
an exclusion of RPUs, the Government is required to demonstrate that there
is a reasonable classification between RPUs on the one hand and Zonal
Railways on the other hand and this classification is based in intelligible
differentia having nexus with the objective sought to be achieved. We find
that in the instant case the appellant has not been able to provide any
satisfactory answer for this classification which appears to be irrational and
arbitrary.
16. Let us first discuss the structure of the Staff Council which the
appellant perceive as justifiable substitute for trade unions. The stand of the
appellant is that there is no necessity for recognition of the respondent union
as the Railway Trade Union as there is a Scheme of Staff Councils which
can redress the grievances of the employees. However, the rules regulating
the formation and functions of the Staff Council would demonstrate that it is
not so inasmuch as:
(i) The staff Council is to function as a purely
advisory body;
(ii) The General Manager has the right to amend the
Constitution of the Staff Council, as and when
necessary;
(iii) The President of the Staff Council is to be a
Gazetted Officer (not below SA Grade) to be
nominated by the General Manager;
(iv) The Secretary of the Staff Council is to be a
Gazetted Officer to be nominated by the General
Manager
(v) The composition of the Staff Council includes
nominated members and members co-opted adhoc;
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(vi) The nominated members could be gazette officers
and are to be nominated by the General Manager
in such number as will be decided by the General
Manager
(vii) The co-opted members could be gazette officers
and are to be nominated by the General Manager;
(viii) The General Manager has the right to revise the
composition of the Staff Council;
(ix) Interim vacancies in the Council are to be filled by
the President of the Council by nominated;
(x) Only those non gazette staff are eligible for
election to the Staff Council who have more than
three years of continuous service;
(xi) Matters concerning pay scales and allowances,
regulation of hours of work and other matters of
high policy affecting all Railways shall not be
discussed at the meeting;
(xii) It is open to the President to delete from proposed
agenda for the meeting subjects which are not open
for discussion;
(xiii) The General manager has the absolute powers to
change, modify, add, delete, amend etc. to any or
all rules and sub rules at any time with or without
consulting the Staff Council;
(xiv) Any directive of the Railway Board on the
functioning of the Staff Council supersedes or
alters the rules to the extent indicated in the
directives.
17. The claim of the appellant that Staff Councils have worked properly,
efficiently, satisfactorily or in public interest and have addressed genuine
grievance of the workers is refuted by the respondent union. It is pointed out
that such Staff Councils which existed in Zonal Railways as well were
abolished long ago but continue to remain in Railway Production Units.
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This is so even when it enjoys the same status as the Railway Workshops
where Staff Council system has been abolished. No valid reason is
forthcoming as to why such Staff Council are abolished in the Railway
Zonal Office but continue to remain in RPUs. The respondent further states
that the respondent union as well as its IAIRF have consistently been
protesting against the dissatisfactory and improper working of the Staff
Council for decades and have raised such issues from time to time. Even
the Staff Council at the RCF Kapurthala itself recorded "the apathetic and
indifferent attitude adopted by the RCF Administration to solve the most
genuine and legitimate demands of the employees". The members of the
Staff Council vide Circular dated 10th January, 2006 tendered their
resignation stating that the RCF administration would be entirely held
responsible for not maintaining industrial peace and harmony in the
organization.
18. We also agree with various reasons given by the learned Single judge
holding that the impugned action is discriminatory. It will also be a
pertinent aspect, which cannot be ignored that the RPUs are deprived of
their representation in JCM by the aforesaid mechanism. It is not wise to
keep them away from this consultative machinery while deciding their fate
and representation to them will be conducive to a healthy atmosphere and in
public interest. Even if the Railway Board had deliberated upon the matter
in 1988 and 1996, it would not be of any avail when the decision itself
suffers from the vice of discrimination.
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19. We thus do not find any merit in this appeal which is
accordingly dismissed with costs quantified at Rs.15,000/-.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
JANUARY, 30, 2012
skb
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. This is the level of today's FEDERATIONS.
