Dear All,
One of our staff who is holding the position of General Secretary in Officers and Supervisor Association got superannuated or retired recently. However he/she is still claiming that he/she is the General Secretary of the said association and came to the office on regular basis in-spite of multiple objection by our HR-Manager. He/ She is threatening that he will take legal action against the company. So my question is that is there any obligation/rules/act that a retired person can continue the position of general secretary after his retirement or superannuated in a Public Sector Enterprise ? If yes then please let me know the same.
Thanking you
Regards,
Laishram Gianizail Singh
From India, Kolkata
One of our staff who is holding the position of General Secretary in Officers and Supervisor Association got superannuated or retired recently. However he/she is still claiming that he/she is the General Secretary of the said association and came to the office on regular basis in-spite of multiple objection by our HR-Manager. He/ She is threatening that he will take legal action against the company. So my question is that is there any obligation/rules/act that a retired person can continue the position of general secretary after his retirement or superannuated in a Public Sector Enterprise ? If yes then please let me know the same.
Thanking you
Regards,
Laishram Gianizail Singh
From India, Kolkata
Hi Laishram,
The relevant provisions of Trade Union act is extracted here for your guidances -
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THE TRADE UNIONS ACT, 1926
ACT NO. 16 OF 1926*1
[25th March, 1926.] 6.
Provisions to be contained in the rules of a Trade Union.
6. Provisions to be contained in the rules of a Trade Union.-
A
Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:--
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are
lawfully applicable under this Act;
(d) the maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the 1*[office-bearers] and members of the
Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of
---------------------------------------------------------------------
1. Subs. by Act 38 of 1964, s. 2, for "officers" (w.e.f. 1-4-1965).
55
the number of honorary or temporary members as 1*[office-bearers] required under section 22 to form the executive of the Trade Union;
2*[(ee) the payment of a subscription by members of the Trade Union which shall be not less than twenty-five naye paise per month per member ;]
(f) the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other 1*[office-bearers] of the Trade Union shall be appointed and removed;
(i) the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the xxxx
----
CHAPTER III
RIGHTS AND LIABILITIES OF REGISTERED TRADE UNIONS
21A.
Disqualifications of office-bearers of Trade Unions.
3*[21A. Disqualifications of office-bearers of Trade Unions.- (1) A person shall be disqualified for being chosen as, and for being, a member of the executive or any other office-bearer of a registered Trade Union if--
(i) he has not attained the age of eighteen years,
(ii) he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed
since his release.
(2) Any member of the executive or other office-bearer of a registered Trade Union who, before the commencement of the Indian Trade Unions (Amendment) Act, 1964 (38 of 1964), has been convicted of any offence involving moral turpitude and sentenced to
11 imprisonment, shall on the date of such commencement cease to be such member or office-bearer unless a period of five years has elapsed since his release before that date.]
From India, Bangalore
1076The relevant provisions of Trade Union act is extracted here for your guidances -
------------
THE TRADE UNIONS ACT, 1926
ACT NO. 16 OF 1926*1
[25th March, 1926.] 6.
Provisions to be contained in the rules of a Trade Union.
6. Provisions to be contained in the rules of a Trade Union.-
A
Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:--
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are
lawfully applicable under this Act;
(d) the maintenance of a list of the members of the Trade Union and adequate facilities for the inspection thereof by the 1*[office-bearers] and members of the
Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of
---------------------------------------------------------------------
1. Subs. by Act 38 of 1964, s. 2, for "officers" (w.e.f. 1-4-1965).
55
the number of honorary or temporary members as 1*[office-bearers] required under section 22 to form the executive of the Trade Union;
2*[(ee) the payment of a subscription by members of the Trade Union which shall be not less than twenty-five naye paise per month per member ;]
(f) the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other 1*[office-bearers] of the Trade Union shall be appointed and removed;
(i) the safe custody of the funds of the Trade Union, an annual audit, in such manner as may be prescribed, of the accounts thereof, and adequate facilities for the xxxx
----
CHAPTER III
RIGHTS AND LIABILITIES OF REGISTERED TRADE UNIONS
21A.
Disqualifications of office-bearers of Trade Unions.
3*[21A. Disqualifications of office-bearers of Trade Unions.- (1) A person shall be disqualified for being chosen as, and for being, a member of the executive or any other office-bearer of a registered Trade Union if--
(i) he has not attained the age of eighteen years,
(ii) he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed
since his release.
(2) Any member of the executive or other office-bearer of a registered Trade Union who, before the commencement of the Indian Trade Unions (Amendment) Act, 1964 (38 of 1964), has been convicted of any offence involving moral turpitude and sentenced to
11 imprisonment, shall on the date of such commencement cease to be such member or office-bearer unless a period of five years has elapsed since his release before that date.]
From India, Bangalore
Dear friend,
Here's a judgement on whether a retired employee hold posts in a Trade Union passed by the the Madras HC.: This will clear your doubts I hope.
-----------------
Madras High Court
S.Valaiyapathy vs Indian Overseas Bank on 11 October, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:11/10/2013
CORAM
THE HON'BLE MR.JUSTICE N.KIRUBAKARAN
Writ petition No.23609 of 2013 &
M.P.Nos.1 to 3 of 2013
S.Valaiyapathy .. Petitioner
Vs.
1.Indian Overseas Bank,
Rep. by its Chairman and Managing Director,
Central Office, No.763, Anna Salai,
Chennai - 600 002.
2.The General Manager,
Personnel Administration Department,
Indian Overseas Bank,
Central Office, No.763, Anna Salai,
Chennai - 600 002.
3.Mr.L.Balasubramanian
4.Mr.S.Srinivasan .. Respondents
Prayer: This writ petition is filed under Article 226 of the Constitution of India for issuance of writ of mandamus, to forbear the first respondent-Bank from permitting the respondents 3 and 4 to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the Bank.
For Petitioner : Mr.S.Sathia Chandran
For Respondents : Mr.N.G.R.Prasad for R-1 and R-2
For Mr.K.Srinivasamurthy
Mr.A.L.Somaiyaji, Senior Counsel (R3)
For Mr.C.R.Chandrasekaran
Mr.A.L.Somaiyaji, Senior Counsel (R4)
For Mrs.Nardadha Sampath
- - -
O R D E R
1. An employee of the first respondent-Bank has approached this Court seeking mandamus, forbearing the first respondent-Bank from permitting the respondents 3 and 4 to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the Bank.
2. The contention of the petitioner is that the Code of Discipline was entered into between the first respondent-Bank and All India Overseas Bank Employees' Union on 05.10.1964. As per the said Code of Discipline, only those members, who are in service of the first respondent-Bank alone are entitled to be office-bearers of All India Overseas Bank Employees' Union, whereas, the respondents 3 and 4 are President and Secretary of the Union, who retired on 30.06.2012 and 31.03.2012 respectively and therefore, they cannot remain as office-bearers of the Union and they cannot negotiate with the first respondent-Bank Management.
3. Mr.S.Sathia Chandran, learned counsel appearing for the petitioner would submit that once the third and fourth respondents retired from the first respondent-Bank, their continuation as President and Secretary of the Union is in violation of Code of Discipline. There is no works committee constituted as per Sections 3 of the Industrial Disputes Act. He would further submit that there are allegations against the third and fourth respondents and the enquiry / investigation by the CBI is pending against them. He relied upon a judgment of the Hon'ble Supreme Court in State Bank of India Staff Association Vs. State Bank of India and others reported in AIR 1996 SCC 1685, wherein it has been held that the representative who is not in the employment of the establishment cannot represent the employee. Therefore, he would contend that the respondents 3 and 4 are disqualified to represent the employees of the first respondent-Bank. He also referred to Section 22 of the Trade Unions Act, to contend that not more than one third or five office-bearers would be outsiders. Therefore, he sought for the relief.
4. Mr.A.L.Somaiyaji, learned senior counsel appearing for the third and fourth respondents would make the following submissions:-
(i) The petitioner has got no locus-standi, as he was removed as member of the Union in 2007 itself through letter dated 09.04.2007.
(ii) The petitioner is trying to enforce the Bye-laws, which has been entered into between members and Union, which cannot be done before this Court.
(iii) Third and fourth respondents have been continuing as office-bearers for the past 22 years. Even though they retired on 30.06.2012 and on 31.03.2012, they were made office-bearers in the National Executive Committee Meeting held in 2010 for a term of three years. The period is not yet over.
(iv) Third and fourth respondents have been admitted as Honorary Members of the Union, after their retirement as per Clause 4 of the Bye-laws and therefore, they are entitled to continue as office-bearers. Section 22 (2) Explanation of Trade Unions Act speaks about restriction with regard to the maximum number of outsiders, who are entitled to be office-bearers and does not prohibit the respondents 3 and 4 from holding the post.
(v) Code of Discipline has no statutory force and it is evolved in Trade Union conventions. It is an informal understanding between the parties and therefore he cannot be equated with the settlements reached in the course of conciliation.
(vi) Affairs of the Union cannot be questioned by an outsider and therefore the relief sought for against the respondents 3 and 4 by the stranger is not sustainable.
(vii) The act of the petitioner is mala-fide in nature. The case has been filed due to inter-union rivalry and to prevent the negotiations of Trade Union with the Management and to deny benefits to the workers of the Bank.
(viii) The petitioner has not questioned the election of third and fourth respondents and therefore, it is not open to the petitioner to question the negotiation by them.
(ix) The learned senior counsel referred to the judgment of Kerala High Court in MA David Vs. KSE Board reported in 1973 KLJ 486 equivalent MANU/KE/0284/1973 to contend that the Code of Discipline has no statutory force. With regard to the same point, he relied upon another judgment in Management of APSRTC Vs. Workmen of APSRTC reported in (2009) 1 LLJ 439 equivalent MANU/AP/0171/2008. Similar dictum has been laid down in K.Vel Vs. Neyveli Lignite Corporation & Others reported in MANU/TN/168/12.
5. In reply, Mr.S.Sathia Chandran, learned counsel appearing for the petitioner would submit that:-
(i) Removal of petitioner from Union through letter dated 09.04.2007 was neither communicated to him nor placed before National Executive Committee.
(ii) The petitioner is not aggrieved against the Union. He is only questioning the act of the Bank having negotiations with strangers and therefore, the writ petition is maintainable.
(iii) Indian Banks' Association letter dated 19.04.2007 states that the retired employee can be office-bearers of Trade Union and such a Member shall have no right to negotiate with the Management. Similarly, Railways letter dated 31.05.2003 also prohibits negotiations with the retired employees. As per the judgment of the Hon'ble Supreme Court reported in AIR 1996 SC 1685, the third and fourth respondents are not entitled to negotiate with the Bank.
6. Mr.N.G.R.Prasad, learned counsel appearing for the first and second respondents would contend that neither they support the petitioner nor support the respondents 3 and 4 and the Bank will abide by the orders of the Court.
Heard the parties and perused the records.
7. It is an admitted fact that the petitioner is an employee of the first respondent-Bank. The contention of the petitioner is that he is the member of the Union and he has got a right to question the continuance of the third and fourth respondents as office-bearers and their right to negotiate with the Bank, after their retirement. It is stated by the third and fourth respondents that the petitioner was a Member of the Union and that he was removed from Membership on 09.04.2007, whereas the petitioner contends that for the first time before this Court only, the alleged removal through letter dated 09.04.2007 is being put-forth and he denies the receipt of such letter. When receipt of such letter is denied by way of reply affidavit filed by the petitioner, it is the bounden duty of the third and fourth respondents to file a proof before this Court that he was removed from the Member of the Union and the said decision was communicated to him. It is well settled law that the communication of any decision will take effect only when the affected party is served of the same. In the absence of any proof regarding service of removal letter dated 09.04.2007, it has to be held that the petitioner continues to be a Member of the Union.
8. If the petitioner is held to be continuing as a Member of the Union, he has got every right to question any office-bearers of the Union, especially, third and fourth respondents who retired as employees of the first respondent-Bank. Therefore, the contention of the third and fourth respondents that the petitioner has no locus-standi is liable to be rejected.
9. It is contended by the third and fourth respondents that the petitioner is trying to enforce the Bye-law, which is between the Members and Union. As rightly contended by the learned counsel for the petitioner that the petitioner is only seeking mandamus to the first respondent-Bank which is an instrumentality of the State not to negotiate with the retired employees of the Bank and therefore, the writ petition is maintainable.
10. An objection has been raised by the third and fourth respondents that the Union is not made as a party and in the absence of necessary party, the writ petition is liable to be dismissed. However, it is seen, the petitioner has got no grievance against the Union and he is only aggrieved with the action of the first respondent-Bank to negotiate with third and fourth respondents and therefore, there is no necessity to make Union as a party. That apart, no relief is sought against the Union and the persons who are to be affected by any order passed by this Court have been made as third and fourth respondents. Therefore, plea of non-joinder of necessary party fails.
11. The main contention of the petitioner is that the third and fourth respondents retired on 30.06.2012 and on 31.03.2012 respectively as first respondent-Bank employees and therefore, they cannot be Members and office-bearer of the Union and consequently, they cannot negotiate with the first respondent-Bank. No doubt, Clause 4(b) of the Bye-laws of All India Overseas Bank Employees' Union, Chennai enables the persons who are not eligible to be ordinary Members, viz., employees of the Indian Overseas Bank, may be admitted as Honorary Members by the resolution of the General Council of the Union for the purpose of being elected to National Executive subject to provisions of Section 22 of the Indian Trade Unions Act, 1926. Clause 4 of the Bye-laws of All India Overseas Bank Employees' Union, reads as follows:-
"MEMBERSHIP:-
a) Members: Any person employed / engaged by Indian Overseas Bank and who is not below the aged of 18 and not belonging to supervisory cadre shall be enrolled as ordinary members of the Union, provided he agrees to abide by the rules and the byelaws of the Union. The term "employees" shall include probationers, apprentices, appraisers, thrift deposit collectors, temporary employees etc., employed/engaged by the Bank. Ordinary members normally after retirement from the Bank service shall not continue to be such members.
b) Honorary members:- Persons who are not eligible to be ordinary members under Cl.4(a) but are in the sympathy with the objects and principles of the Union may be admitted as Honorary members by a resolution of the General Council of the Union for the purpose of being elected to National Executive and shall be Honorary members of the Union during the period of office subject to provisions of Section 22 of the Indian Trade Union Act 1926. The number of Honorary Members so admitted in any case shall not exceed six for time being. Honorary Members may make any contribution towards the funds of the Union as they like. The Honorary Members shall also be members of the General Council. The National Executive shall also be entitled to admit Honorary Members subject to the number fixed above."
From the above, it is very clear, a retired bank employee cannot continue as ordinary Member as per Clause 4(a). However, under clause 4(b) he can be admitted as Honorary Member by the Resolution of the General Council or by National Executive as Honorary Members. In view of that the contention of the petitioner that the third and fourth respondents cannot continue as Members of the Union has to be rejected.
12. It is contended that the third respondent retired on 30.06.2012 and the fourth respondent retired on 31.03.2012 from the Bank employment. They were elected as President and Secretary of the Union in the General Council Meeting held in the year 2010 for a period of three years. Meeting of the National Executive held on 29.01.2012 and on 20.04.2013, following the General Council Meeting, ratified the resolution of the General Council affirming the continuation of the third and fourth respondents as President and Secretary by admitting them as Honorary Members of the Union. The copy of the resolution No.78, dated 18.07.2010 would show that the third and fourth respondents to be admitted as Honorary Members for the purpose of being elected to National Executive, after reaching their superannuation in Bank service. Hence, the third and forth respondents are Honorary Members of the Union and they can continue to be the Members of the Union.
13. Next crucial point which is to be decided as to whether third and fourth respondents, being honorary members could be elected as office-bearers and as to whether they can represent the Union to the Bank for the purpose of negotiation.
Sections 6 and 22 of the Trade Union Act are extracted as follows:
"6. Provisions to be contained in the rules of a Trade Union A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:--
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act;
(d) the maintenance of a list of the members of the trade and adequate facilities for the inspection thereof by the (office-bearers) and members of the Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members (office-bearers) required under Section 22 to form the executive of the Trade Union;
(ee) the payment of a minimum subscription by members of the Trade Union which shall not be less than --
(i) one rupee per annum for rural workers;
(ii) three rupees per annum for workers in other unorganised sectors; and
(iii) twelve rupees per annum for workers in any other case;)
(f) the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other (office-bearers) of the Trade Union shall be (elected) and removed;
((hh) the duration of period being not more than three years, for which the members of the executive and other office bearers of the trade union shall be elected; )
(i) the safe custody of the funds of the Trade Union, and annual audit, in such manner as maybe prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the (office-bearers) and members of the Trade Union;
(j) the manner in which the Trade Union may be dissolved."
"22. Proportion of office-bearers to be connected with the industry (1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unorganised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected:
Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order.
Explanation For the purposes of this section "unorganised sector" means any sector which the appropriate Government may, by notification in the Official Gazette, specify.
(2) Save as otherwise provided in sub-section (1), all office-bearers of a registered trade union, except not more than one-third of the total number of the office-bearers or five, whichever is less, shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected.
Explanation For the purposes of this sub-section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union.
(3) No member of the Council of Ministers or a person holding an office of profit (not being an engagement or employment in an establishment or industry with which the Trade Union is connected), in the Union or a State, shall be a member of the executive or other office-bearer of a registered Trade Union."
Explanation to Section 22 of the Trade Unions Act authorises an employee, who retired shall not be construed as outsider for the purpose of holding an office in a Trade Union. That apart, Clause 4(b) of the Bye-law of All India Overseas Bank Employee's Union, Chennai also enables third and fourth respondents to be the office-bearers of the Union. Therefore, it has to be held that there is no prohibition for the third and forth respondent to continue as office-bearers of the Union, even after their retirement.
14. There is no quarrel with regard to the contention of the respondents that the Code of Discipline is not enforceable and has no statutory force as held in Kerala High Court, Andhra Pradesh High Court and by this Court. At the same time, it has to be kept in mind that the recognition of employees association by the management was obtained based on the undertaking given to the first rspondent bank on 5.10.1964 stating that its membership is restricted only to the employees of the Bank and that its office bearers are also employees of the Bank.
15. The most important crucial issue is as to whether the first respondent-Bank can negotiate with the third and fourth respondents, who are no more in service of the first respondent-Bank, as office-bearers of the employees Union. Code of Discipline reads as follows:-
"WHEREAS the Union advised the Management that its membership is restricted only to the employees of the Bank, that its office-bearers are also employees of the Bank, that it is an independent body unaffiliated with any outside or All India Organization and that it commands the support of the overall majority of the employees and in case it is necessary, the Management may have access to the register of membership."
A perusal of Code of Discipline would reveal that the Bank can have negotiations only with the serving employees. The Indian Banks' Association letter dated 19.04.2007 with regard to participation of retired bank officers with banks Management informed that the Bank, by not permitting a retired officer of the Bank to take part in bilateral discussions with the association/federation is not questioning continuance of the retired officer as an office-bearer of the association. Further, it is stated as follows:-
"At the cost of repetition, we may reiterate that an ordinary or temporary member (including a retired employee) may be an office bearer of a Trade Union but the Trade Unions Act, 1926 no where provides that such a member shall also have a right to negotiate with the management or the management would be under obligation to negotiate with an office bearer of the union who is no longer in the employment of the industry to which the Trade Union is connected."
From the above, it is very evident that the Management of the Bank is under no obligation to negotiate with an office-bearer of the Union who is no longer in the employment of the Bank to which the Trade Union is connected. The Hon'ble Supreme Court in State Bank of India Staff Association Vs. State Bank of India reported in AIR 1996 SCC 1685, categorically held that the employees ceasing to be an employment cannot represent the employee. The question fell for consideration before the Hon'ble Supreme Court is as to whether the decision of the Bank Management not to negotiate one Mr.N.P.Awasthi who retired from Bank and elected as General Secretary of Association on any matter of the Union / Association was valid or not. The Bank contended that only a serving employee can represent the Union in bilateral discussions with the Bank and that on account of the fact that Bank being the credit institution cannot negotiate with the person who is not required to be bound by the declaration of secrecy and fidelity, by which other serving employees are bound. It has been held in paragraph 8 of judgment as follows:-
" .... The provisions contained in Sections 6 and 22 reproduced above relate to the registration of Trade Union and constitution of the executive of the said Union. The Provisions of Sections 6 and 22 indicate that an ordinary or a temporary member may be an office-bearer, but they nowhere provide that such a member shall have a right to negotiate with the Management or the Management would be under an obligation to negotiate with an office-bearer of the Union who is no longer in the employment of the Industry which the Trade Union is connected."
In view of the above categorical declaration by the Hon'ble Supreme Court, though the third and fourth respondents are entitled to be Honorary Members as well as office-bearers of the association, the Management cannot negotiate with the office bearers, third and fourth respondents, who are no longer in the Bank's employment.
16. It is further held in paragraph 9 in the said judgment that under the Industrial Disputes Act, the representatives of the workmen have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an ex-workman of the establishment concerned or any other person and that having regard to the provisions of Section 36 read with 3 of the Industrial Disputes Act, an honorary/temporary member or a private individual is not entitled to represent workmen. It is further held in para 9 which reads as follows:
" while referring to the provisions of section 36 of Industrial Disputes Act, the provisions of Section 3 of the said Act cannot be overlooked or ignored. The provisions of the Trade Union Act 1926, have to be harmonised with the relevant provisions of the Industrial Disputes Act 1947. It has also to be kept in view that the Industrial Disputes Act is a much later Act, which besides other matters, specifically concentrates on harmonious relations between the employer and workmen, the dispute between the two and settlement thereof by negotiations with the Assistance of their respective representatives"
In the light of judgment of the Hon'ble Supreme Court reported in AIR 1996 SCC 1685, it has to be held that the first respondents-Bank cannot negotiate with the third and fourth respondents, as Honorary Members and office bearers of the Trade Unions Leaders, Employees Association Members and Office-bearers of the Trade Union, who are no more in the employment of the first respondent-Bank.
17. One more important aspect is that the Banking Institution is a Credit Institution and cannot deal with a person, who is an outsider, who is not required to be bound by the declaration of secrecy and fidelity. Interest of the serving employees and cordial relationship between the institution and the serving employees are important factors and an outsider may not have much interest to keep all those points in mind. Therefore, the first respondent-Bank cannot negotiate with the retired employees, viz., the third and fourth respondent.
18. Participation of third parties / outsiders in the negotiation between the employer/Management and Workers/employees is not good given the present day scenario. The engagement of outsiders as representatives of the workers was during the period when the workers were not much educated or aware of their rights, whereas in the modern world, the workers/employees are well educated and well informed. They are very much aware of their rights and privileges and they can take care of themselves and therefore it will be appropriate to restrict the Membership of Trade Union only to those who are working in the said establishment and not to outsiders. There have been many instances in the past , where pressure was put on Trade Unions to participate in politically sponsored strikes/ bandhs as their leaders belong to politically oriented groups or representatives of political parties. Therefore, it is better to amend Sections 3 and 22 of the Trade Unions Act and the Industrial Disputes Act so as to prevent outsiders being representatives or office-bearers of the Union.
19. In this case, it is contended that the respondents 3 and 4 continue to be office-bearers of the Association for the past 23 years and 15 years and the third respondent is holding the post of employee director in the Board of Directors. Concentration of power or responsibility, with individuals in any organization is against the Principles of Democracy and Socialism. The power should get more from person to person, otherwise, it will give to monarchy status to the particular individual. Continuous and repeated election of individuals as office bearers for a long time is not conducive for healthy atmosphere in the trade union/association itself. One cannot keep holding the post long denying rights to others and the third and fourth respondents, even after retirement prevent eligible serving employee becoming office bearer of the Association and it has to be deprecated.
20. Even after retirement, if a person is allowed to continue as leader, it will only arrogating the powers of the Trade Union, which is meant for collective bargaining. If the serving workers / employees, of the industry or establishment alone are made as Union Leaders, it will go in a long way to improve the healthy atmosphere in the industry, promote cordial relationship between the employer-employee and build better understanding and promotion measures. It will lay foundations to increase the productivity, secure better administration, welfare measure and safety measure. If the retired persons are allowed to act as Trade Union Leaders, it will create unnecessary power centres which will not ensure smooth functioning of the establishment. Only if the serving members are elected as office bearers of the Union, as insiders, they would act after taking stock of the entire situation in the establishment and negotiate with the Management in a peaceful manner. The serving members alone are in a better position to understand the actual and practical difficulties faced by the employees in the changed scenario and not by the outsiders. That apart, the outsiders may thrust their views according to their policy. Therefore, the Membership of any Union should be restricted only to the serving members of the industry / establishment. This court is aware of the excellent services rendered by the Trade Union leaders in protecting the interest of the workers in the industries. By suggesting that only the serving employees alone should be made as Office Bearers of the association/union, this Court is not underestimating the contribution of the outside union leaders who genuinely continue to safeguard the interest of the workmen.
21. It is contended by the parties that there is no works committee constituted in any of the nationalised bank under Section 3 of the Industrial Disputes Act 1947, which reads as follows:
"3. Works Committee (1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment, so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (6 of 1926).
(2) It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to commend upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters."
If Works Committees are formed by the appropriate governments as per Section 3 of the Industrial Disputes Act, the participation of outsiders can be effectively prevented. Therefore, taking into consideration of the above position, this court suggests to the appropriate Governments to enforce Section 3 of the Industrial Dispute Act 1947 by constituting Works Committee under Section 3 of I.D.Act in all the establishments. The intention of the Parliament to introduce Section 3 in the Industrial Disputes Act is to remove causes of friction between employer and workmen in the day to day working establishment and to promote measures in securing amity and good relationship between them. It is intended for voluntary settlement and to provide "Indoor management" to the establishment without interference of the outsiders.
22. In the interest of workers and management, to keep amicable relationship between them, to create peaceful atmosphere and to improve harmonious and constructive relation between the employer/management and employees/staffs in the establishments the following suggestions are made given to the appropriate Governments:
(1) To enforce Section 3 of the I.D.Act by the appropriate Governments by constituting Works Committee consisting of representatives of employers and workmen engaged in the establishment.
(2) To amend the provisions of Sections 6 and 22 of the Trade Unions Act curtailing outsiders being elected as members as well as office bearers of association/union.
23. For the reasons stated above, the writ petition is allowed forbearing the first respondent-Bank from permitting the respondents 3 and 4 who are retired employees of first respondent bank to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the first respondent Bank. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
11/ 10 / 2013 Index : Yes Internet: Yes r n s/vk Note:Issue order copy on 17.10.2013 To
1. The Secretary, Ministry of Labour and Welfare Department, Union of India, New Delhi.
2.The Law Commission, New Delhi.
3.The Secretary, Ministry of Labour and Welfare Department, Tamil Nadu, Fort St.George, Chennai-600 009.
4.TheChairman and Managing Director, Indian Overseas Bank, Central Office, No.763, Anna Salai, Chennai - 600 002.
5.The General Manager, Personnel Administration Department, Indian Overseas Bank, Central Office, No.763, Anna Salai, Chennai - 600 002.
N.KIRUBAKARAN,J.
r n s/vk Order in Writ petition No.23609 of 2013 & M.P.Nos.1 to 3 of 2013 11/10/2013
From India, Bangalore
Here's a judgement on whether a retired employee hold posts in a Trade Union passed by the the Madras HC.: This will clear your doubts I hope.
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Madras High Court
S.Valaiyapathy vs Indian Overseas Bank on 11 October, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:11/10/2013
CORAM
THE HON'BLE MR.JUSTICE N.KIRUBAKARAN
Writ petition No.23609 of 2013 &
M.P.Nos.1 to 3 of 2013
S.Valaiyapathy .. Petitioner
Vs.
1.Indian Overseas Bank,
Rep. by its Chairman and Managing Director,
Central Office, No.763, Anna Salai,
Chennai - 600 002.
2.The General Manager,
Personnel Administration Department,
Indian Overseas Bank,
Central Office, No.763, Anna Salai,
Chennai - 600 002.
3.Mr.L.Balasubramanian
4.Mr.S.Srinivasan .. Respondents
Prayer: This writ petition is filed under Article 226 of the Constitution of India for issuance of writ of mandamus, to forbear the first respondent-Bank from permitting the respondents 3 and 4 to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the Bank.
For Petitioner : Mr.S.Sathia Chandran
For Respondents : Mr.N.G.R.Prasad for R-1 and R-2
For Mr.K.Srinivasamurthy
Mr.A.L.Somaiyaji, Senior Counsel (R3)
For Mr.C.R.Chandrasekaran
Mr.A.L.Somaiyaji, Senior Counsel (R4)
For Mrs.Nardadha Sampath
- - -
O R D E R
1. An employee of the first respondent-Bank has approached this Court seeking mandamus, forbearing the first respondent-Bank from permitting the respondents 3 and 4 to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the Bank.
2. The contention of the petitioner is that the Code of Discipline was entered into between the first respondent-Bank and All India Overseas Bank Employees' Union on 05.10.1964. As per the said Code of Discipline, only those members, who are in service of the first respondent-Bank alone are entitled to be office-bearers of All India Overseas Bank Employees' Union, whereas, the respondents 3 and 4 are President and Secretary of the Union, who retired on 30.06.2012 and 31.03.2012 respectively and therefore, they cannot remain as office-bearers of the Union and they cannot negotiate with the first respondent-Bank Management.
3. Mr.S.Sathia Chandran, learned counsel appearing for the petitioner would submit that once the third and fourth respondents retired from the first respondent-Bank, their continuation as President and Secretary of the Union is in violation of Code of Discipline. There is no works committee constituted as per Sections 3 of the Industrial Disputes Act. He would further submit that there are allegations against the third and fourth respondents and the enquiry / investigation by the CBI is pending against them. He relied upon a judgment of the Hon'ble Supreme Court in State Bank of India Staff Association Vs. State Bank of India and others reported in AIR 1996 SCC 1685, wherein it has been held that the representative who is not in the employment of the establishment cannot represent the employee. Therefore, he would contend that the respondents 3 and 4 are disqualified to represent the employees of the first respondent-Bank. He also referred to Section 22 of the Trade Unions Act, to contend that not more than one third or five office-bearers would be outsiders. Therefore, he sought for the relief.
4. Mr.A.L.Somaiyaji, learned senior counsel appearing for the third and fourth respondents would make the following submissions:-
(i) The petitioner has got no locus-standi, as he was removed as member of the Union in 2007 itself through letter dated 09.04.2007.
(ii) The petitioner is trying to enforce the Bye-laws, which has been entered into between members and Union, which cannot be done before this Court.
(iii) Third and fourth respondents have been continuing as office-bearers for the past 22 years. Even though they retired on 30.06.2012 and on 31.03.2012, they were made office-bearers in the National Executive Committee Meeting held in 2010 for a term of three years. The period is not yet over.
(iv) Third and fourth respondents have been admitted as Honorary Members of the Union, after their retirement as per Clause 4 of the Bye-laws and therefore, they are entitled to continue as office-bearers. Section 22 (2) Explanation of Trade Unions Act speaks about restriction with regard to the maximum number of outsiders, who are entitled to be office-bearers and does not prohibit the respondents 3 and 4 from holding the post.
(v) Code of Discipline has no statutory force and it is evolved in Trade Union conventions. It is an informal understanding between the parties and therefore he cannot be equated with the settlements reached in the course of conciliation.
(vi) Affairs of the Union cannot be questioned by an outsider and therefore the relief sought for against the respondents 3 and 4 by the stranger is not sustainable.
(vii) The act of the petitioner is mala-fide in nature. The case has been filed due to inter-union rivalry and to prevent the negotiations of Trade Union with the Management and to deny benefits to the workers of the Bank.
(viii) The petitioner has not questioned the election of third and fourth respondents and therefore, it is not open to the petitioner to question the negotiation by them.
(ix) The learned senior counsel referred to the judgment of Kerala High Court in MA David Vs. KSE Board reported in 1973 KLJ 486 equivalent MANU/KE/0284/1973 to contend that the Code of Discipline has no statutory force. With regard to the same point, he relied upon another judgment in Management of APSRTC Vs. Workmen of APSRTC reported in (2009) 1 LLJ 439 equivalent MANU/AP/0171/2008. Similar dictum has been laid down in K.Vel Vs. Neyveli Lignite Corporation & Others reported in MANU/TN/168/12.
5. In reply, Mr.S.Sathia Chandran, learned counsel appearing for the petitioner would submit that:-
(i) Removal of petitioner from Union through letter dated 09.04.2007 was neither communicated to him nor placed before National Executive Committee.
(ii) The petitioner is not aggrieved against the Union. He is only questioning the act of the Bank having negotiations with strangers and therefore, the writ petition is maintainable.
(iii) Indian Banks' Association letter dated 19.04.2007 states that the retired employee can be office-bearers of Trade Union and such a Member shall have no right to negotiate with the Management. Similarly, Railways letter dated 31.05.2003 also prohibits negotiations with the retired employees. As per the judgment of the Hon'ble Supreme Court reported in AIR 1996 SC 1685, the third and fourth respondents are not entitled to negotiate with the Bank.
6. Mr.N.G.R.Prasad, learned counsel appearing for the first and second respondents would contend that neither they support the petitioner nor support the respondents 3 and 4 and the Bank will abide by the orders of the Court.
Heard the parties and perused the records.
7. It is an admitted fact that the petitioner is an employee of the first respondent-Bank. The contention of the petitioner is that he is the member of the Union and he has got a right to question the continuance of the third and fourth respondents as office-bearers and their right to negotiate with the Bank, after their retirement. It is stated by the third and fourth respondents that the petitioner was a Member of the Union and that he was removed from Membership on 09.04.2007, whereas the petitioner contends that for the first time before this Court only, the alleged removal through letter dated 09.04.2007 is being put-forth and he denies the receipt of such letter. When receipt of such letter is denied by way of reply affidavit filed by the petitioner, it is the bounden duty of the third and fourth respondents to file a proof before this Court that he was removed from the Member of the Union and the said decision was communicated to him. It is well settled law that the communication of any decision will take effect only when the affected party is served of the same. In the absence of any proof regarding service of removal letter dated 09.04.2007, it has to be held that the petitioner continues to be a Member of the Union.
8. If the petitioner is held to be continuing as a Member of the Union, he has got every right to question any office-bearers of the Union, especially, third and fourth respondents who retired as employees of the first respondent-Bank. Therefore, the contention of the third and fourth respondents that the petitioner has no locus-standi is liable to be rejected.
9. It is contended by the third and fourth respondents that the petitioner is trying to enforce the Bye-law, which is between the Members and Union. As rightly contended by the learned counsel for the petitioner that the petitioner is only seeking mandamus to the first respondent-Bank which is an instrumentality of the State not to negotiate with the retired employees of the Bank and therefore, the writ petition is maintainable.
10. An objection has been raised by the third and fourth respondents that the Union is not made as a party and in the absence of necessary party, the writ petition is liable to be dismissed. However, it is seen, the petitioner has got no grievance against the Union and he is only aggrieved with the action of the first respondent-Bank to negotiate with third and fourth respondents and therefore, there is no necessity to make Union as a party. That apart, no relief is sought against the Union and the persons who are to be affected by any order passed by this Court have been made as third and fourth respondents. Therefore, plea of non-joinder of necessary party fails.
11. The main contention of the petitioner is that the third and fourth respondents retired on 30.06.2012 and on 31.03.2012 respectively as first respondent-Bank employees and therefore, they cannot be Members and office-bearer of the Union and consequently, they cannot negotiate with the first respondent-Bank. No doubt, Clause 4(b) of the Bye-laws of All India Overseas Bank Employees' Union, Chennai enables the persons who are not eligible to be ordinary Members, viz., employees of the Indian Overseas Bank, may be admitted as Honorary Members by the resolution of the General Council of the Union for the purpose of being elected to National Executive subject to provisions of Section 22 of the Indian Trade Unions Act, 1926. Clause 4 of the Bye-laws of All India Overseas Bank Employees' Union, reads as follows:-
"MEMBERSHIP:-
a) Members: Any person employed / engaged by Indian Overseas Bank and who is not below the aged of 18 and not belonging to supervisory cadre shall be enrolled as ordinary members of the Union, provided he agrees to abide by the rules and the byelaws of the Union. The term "employees" shall include probationers, apprentices, appraisers, thrift deposit collectors, temporary employees etc., employed/engaged by the Bank. Ordinary members normally after retirement from the Bank service shall not continue to be such members.
b) Honorary members:- Persons who are not eligible to be ordinary members under Cl.4(a) but are in the sympathy with the objects and principles of the Union may be admitted as Honorary members by a resolution of the General Council of the Union for the purpose of being elected to National Executive and shall be Honorary members of the Union during the period of office subject to provisions of Section 22 of the Indian Trade Union Act 1926. The number of Honorary Members so admitted in any case shall not exceed six for time being. Honorary Members may make any contribution towards the funds of the Union as they like. The Honorary Members shall also be members of the General Council. The National Executive shall also be entitled to admit Honorary Members subject to the number fixed above."
From the above, it is very clear, a retired bank employee cannot continue as ordinary Member as per Clause 4(a). However, under clause 4(b) he can be admitted as Honorary Member by the Resolution of the General Council or by National Executive as Honorary Members. In view of that the contention of the petitioner that the third and fourth respondents cannot continue as Members of the Union has to be rejected.
12. It is contended that the third respondent retired on 30.06.2012 and the fourth respondent retired on 31.03.2012 from the Bank employment. They were elected as President and Secretary of the Union in the General Council Meeting held in the year 2010 for a period of three years. Meeting of the National Executive held on 29.01.2012 and on 20.04.2013, following the General Council Meeting, ratified the resolution of the General Council affirming the continuation of the third and fourth respondents as President and Secretary by admitting them as Honorary Members of the Union. The copy of the resolution No.78, dated 18.07.2010 would show that the third and fourth respondents to be admitted as Honorary Members for the purpose of being elected to National Executive, after reaching their superannuation in Bank service. Hence, the third and forth respondents are Honorary Members of the Union and they can continue to be the Members of the Union.
13. Next crucial point which is to be decided as to whether third and fourth respondents, being honorary members could be elected as office-bearers and as to whether they can represent the Union to the Bank for the purpose of negotiation.
Sections 6 and 22 of the Trade Union Act are extracted as follows:
"6. Provisions to be contained in the rules of a Trade Union A Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the following matters, namely:--
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall be purposes to which such funds are lawfully applicable under this Act;
(d) the maintenance of a list of the members of the trade and adequate facilities for the inspection thereof by the (office-bearers) and members of the Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members (office-bearers) required under Section 22 to form the executive of the Trade Union;
(ee) the payment of a minimum subscription by members of the Trade Union which shall not be less than --
(i) one rupee per annum for rural workers;
(ii) three rupees per annum for workers in other unorganised sectors; and
(iii) twelve rupees per annum for workers in any other case;)
(f) the conditions under which any member shall be entitled to any benefit assured by the rules and under which any fine or forfeiture may be imposed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other (office-bearers) of the Trade Union shall be (elected) and removed;
((hh) the duration of period being not more than three years, for which the members of the executive and other office bearers of the trade union shall be elected; )
(i) the safe custody of the funds of the Trade Union, and annual audit, in such manner as maybe prescribed, of the accounts thereof, and adequate facilities for the inspection of the account books by the (office-bearers) and members of the Trade Union;
(j) the manner in which the Trade Union may be dissolved."
"22. Proportion of office-bearers to be connected with the industry (1) Not less than one-half of the total number of the office-bearers of every registered Trade Union in an unorganised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected:
Provided that the appropriate Government may, by special or general order, declare that the provisions of this section shall not apply to any Trade Union or class of Trade Unions specified in the order.
Explanation For the purposes of this section "unorganised sector" means any sector which the appropriate Government may, by notification in the Official Gazette, specify.
(2) Save as otherwise provided in sub-section (1), all office-bearers of a registered trade union, except not more than one-third of the total number of the office-bearers or five, whichever is less, shall be persons actually engaged or employed in the establishment or industry with which the Trade Union is connected.
Explanation For the purposes of this sub-section, an employee who has retired or has been retrenched shall not be construed as outsider for the purpose of holding an office in a Trade Union.
(3) No member of the Council of Ministers or a person holding an office of profit (not being an engagement or employment in an establishment or industry with which the Trade Union is connected), in the Union or a State, shall be a member of the executive or other office-bearer of a registered Trade Union."
Explanation to Section 22 of the Trade Unions Act authorises an employee, who retired shall not be construed as outsider for the purpose of holding an office in a Trade Union. That apart, Clause 4(b) of the Bye-law of All India Overseas Bank Employee's Union, Chennai also enables third and fourth respondents to be the office-bearers of the Union. Therefore, it has to be held that there is no prohibition for the third and forth respondent to continue as office-bearers of the Union, even after their retirement.
14. There is no quarrel with regard to the contention of the respondents that the Code of Discipline is not enforceable and has no statutory force as held in Kerala High Court, Andhra Pradesh High Court and by this Court. At the same time, it has to be kept in mind that the recognition of employees association by the management was obtained based on the undertaking given to the first rspondent bank on 5.10.1964 stating that its membership is restricted only to the employees of the Bank and that its office bearers are also employees of the Bank.
15. The most important crucial issue is as to whether the first respondent-Bank can negotiate with the third and fourth respondents, who are no more in service of the first respondent-Bank, as office-bearers of the employees Union. Code of Discipline reads as follows:-
"WHEREAS the Union advised the Management that its membership is restricted only to the employees of the Bank, that its office-bearers are also employees of the Bank, that it is an independent body unaffiliated with any outside or All India Organization and that it commands the support of the overall majority of the employees and in case it is necessary, the Management may have access to the register of membership."
A perusal of Code of Discipline would reveal that the Bank can have negotiations only with the serving employees. The Indian Banks' Association letter dated 19.04.2007 with regard to participation of retired bank officers with banks Management informed that the Bank, by not permitting a retired officer of the Bank to take part in bilateral discussions with the association/federation is not questioning continuance of the retired officer as an office-bearer of the association. Further, it is stated as follows:-
"At the cost of repetition, we may reiterate that an ordinary or temporary member (including a retired employee) may be an office bearer of a Trade Union but the Trade Unions Act, 1926 no where provides that such a member shall also have a right to negotiate with the management or the management would be under obligation to negotiate with an office bearer of the union who is no longer in the employment of the industry to which the Trade Union is connected."
From the above, it is very evident that the Management of the Bank is under no obligation to negotiate with an office-bearer of the Union who is no longer in the employment of the Bank to which the Trade Union is connected. The Hon'ble Supreme Court in State Bank of India Staff Association Vs. State Bank of India reported in AIR 1996 SCC 1685, categorically held that the employees ceasing to be an employment cannot represent the employee. The question fell for consideration before the Hon'ble Supreme Court is as to whether the decision of the Bank Management not to negotiate one Mr.N.P.Awasthi who retired from Bank and elected as General Secretary of Association on any matter of the Union / Association was valid or not. The Bank contended that only a serving employee can represent the Union in bilateral discussions with the Bank and that on account of the fact that Bank being the credit institution cannot negotiate with the person who is not required to be bound by the declaration of secrecy and fidelity, by which other serving employees are bound. It has been held in paragraph 8 of judgment as follows:-
" .... The provisions contained in Sections 6 and 22 reproduced above relate to the registration of Trade Union and constitution of the executive of the said Union. The Provisions of Sections 6 and 22 indicate that an ordinary or a temporary member may be an office-bearer, but they nowhere provide that such a member shall have a right to negotiate with the Management or the Management would be under an obligation to negotiate with an office-bearer of the Union who is no longer in the employment of the Industry which the Trade Union is connected."
In view of the above categorical declaration by the Hon'ble Supreme Court, though the third and fourth respondents are entitled to be Honorary Members as well as office-bearers of the association, the Management cannot negotiate with the office bearers, third and fourth respondents, who are no longer in the Bank's employment.
16. It is further held in paragraph 9 in the said judgment that under the Industrial Disputes Act, the representatives of the workmen have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an ex-workman of the establishment concerned or any other person and that having regard to the provisions of Section 36 read with 3 of the Industrial Disputes Act, an honorary/temporary member or a private individual is not entitled to represent workmen. It is further held in para 9 which reads as follows:
" while referring to the provisions of section 36 of Industrial Disputes Act, the provisions of Section 3 of the said Act cannot be overlooked or ignored. The provisions of the Trade Union Act 1926, have to be harmonised with the relevant provisions of the Industrial Disputes Act 1947. It has also to be kept in view that the Industrial Disputes Act is a much later Act, which besides other matters, specifically concentrates on harmonious relations between the employer and workmen, the dispute between the two and settlement thereof by negotiations with the Assistance of their respective representatives"
In the light of judgment of the Hon'ble Supreme Court reported in AIR 1996 SCC 1685, it has to be held that the first respondents-Bank cannot negotiate with the third and fourth respondents, as Honorary Members and office bearers of the Trade Unions Leaders, Employees Association Members and Office-bearers of the Trade Union, who are no more in the employment of the first respondent-Bank.
17. One more important aspect is that the Banking Institution is a Credit Institution and cannot deal with a person, who is an outsider, who is not required to be bound by the declaration of secrecy and fidelity. Interest of the serving employees and cordial relationship between the institution and the serving employees are important factors and an outsider may not have much interest to keep all those points in mind. Therefore, the first respondent-Bank cannot negotiate with the retired employees, viz., the third and fourth respondent.
18. Participation of third parties / outsiders in the negotiation between the employer/Management and Workers/employees is not good given the present day scenario. The engagement of outsiders as representatives of the workers was during the period when the workers were not much educated or aware of their rights, whereas in the modern world, the workers/employees are well educated and well informed. They are very much aware of their rights and privileges and they can take care of themselves and therefore it will be appropriate to restrict the Membership of Trade Union only to those who are working in the said establishment and not to outsiders. There have been many instances in the past , where pressure was put on Trade Unions to participate in politically sponsored strikes/ bandhs as their leaders belong to politically oriented groups or representatives of political parties. Therefore, it is better to amend Sections 3 and 22 of the Trade Unions Act and the Industrial Disputes Act so as to prevent outsiders being representatives or office-bearers of the Union.
19. In this case, it is contended that the respondents 3 and 4 continue to be office-bearers of the Association for the past 23 years and 15 years and the third respondent is holding the post of employee director in the Board of Directors. Concentration of power or responsibility, with individuals in any organization is against the Principles of Democracy and Socialism. The power should get more from person to person, otherwise, it will give to monarchy status to the particular individual. Continuous and repeated election of individuals as office bearers for a long time is not conducive for healthy atmosphere in the trade union/association itself. One cannot keep holding the post long denying rights to others and the third and fourth respondents, even after retirement prevent eligible serving employee becoming office bearer of the Association and it has to be deprecated.
20. Even after retirement, if a person is allowed to continue as leader, it will only arrogating the powers of the Trade Union, which is meant for collective bargaining. If the serving workers / employees, of the industry or establishment alone are made as Union Leaders, it will go in a long way to improve the healthy atmosphere in the industry, promote cordial relationship between the employer-employee and build better understanding and promotion measures. It will lay foundations to increase the productivity, secure better administration, welfare measure and safety measure. If the retired persons are allowed to act as Trade Union Leaders, it will create unnecessary power centres which will not ensure smooth functioning of the establishment. Only if the serving members are elected as office bearers of the Union, as insiders, they would act after taking stock of the entire situation in the establishment and negotiate with the Management in a peaceful manner. The serving members alone are in a better position to understand the actual and practical difficulties faced by the employees in the changed scenario and not by the outsiders. That apart, the outsiders may thrust their views according to their policy. Therefore, the Membership of any Union should be restricted only to the serving members of the industry / establishment. This court is aware of the excellent services rendered by the Trade Union leaders in protecting the interest of the workers in the industries. By suggesting that only the serving employees alone should be made as Office Bearers of the association/union, this Court is not underestimating the contribution of the outside union leaders who genuinely continue to safeguard the interest of the workmen.
21. It is contended by the parties that there is no works committee constituted in any of the nationalised bank under Section 3 of the Industrial Disputes Act 1947, which reads as follows:
"3. Works Committee (1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment, so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (6 of 1926).
(2) It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to commend upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters."
If Works Committees are formed by the appropriate governments as per Section 3 of the Industrial Disputes Act, the participation of outsiders can be effectively prevented. Therefore, taking into consideration of the above position, this court suggests to the appropriate Governments to enforce Section 3 of the Industrial Dispute Act 1947 by constituting Works Committee under Section 3 of I.D.Act in all the establishments. The intention of the Parliament to introduce Section 3 in the Industrial Disputes Act is to remove causes of friction between employer and workmen in the day to day working establishment and to promote measures in securing amity and good relationship between them. It is intended for voluntary settlement and to provide "Indoor management" to the establishment without interference of the outsiders.
22. In the interest of workers and management, to keep amicable relationship between them, to create peaceful atmosphere and to improve harmonious and constructive relation between the employer/management and employees/staffs in the establishments the following suggestions are made given to the appropriate Governments:
(1) To enforce Section 3 of the I.D.Act by the appropriate Governments by constituting Works Committee consisting of representatives of employers and workmen engaged in the establishment.
(2) To amend the provisions of Sections 6 and 22 of the Trade Unions Act curtailing outsiders being elected as members as well as office bearers of association/union.
23. For the reasons stated above, the writ petition is allowed forbearing the first respondent-Bank from permitting the respondents 3 and 4 who are retired employees of first respondent bank to participate in the negotiations and discussions with the Bank-Management in respect of any matter pertaining to employer-employee relations of the first respondent Bank. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
11/ 10 / 2013 Index : Yes Internet: Yes r n s/vk Note:Issue order copy on 17.10.2013 To
1. The Secretary, Ministry of Labour and Welfare Department, Union of India, New Delhi.
2.The Law Commission, New Delhi.
3.The Secretary, Ministry of Labour and Welfare Department, Tamil Nadu, Fort St.George, Chennai-600 009.
4.TheChairman and Managing Director, Indian Overseas Bank, Central Office, No.763, Anna Salai, Chennai - 600 002.
5.The General Manager, Personnel Administration Department, Indian Overseas Bank, Central Office, No.763, Anna Salai, Chennai - 600 002.
N.KIRUBAKARAN,J.
r n s/vk Order in Writ petition No.23609 of 2013 & M.P.Nos.1 to 3 of 2013 11/10/2013
From India, Bangalore
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