Cochin Refineries Employees' Association v. Bharat Petroleum Corporation Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **WP(C).No. 33441 of 2010 (E) ----------------------------** **PETITIONER(S): -------------** **THE COCHIN REFINERIES EMPLOYEES' ASSOCIATION (REG.NO.120/67), AMBALAMUGAL, KOCHI-682302, REPRESENTED BY ITS GENERAL SECRETARY, P.N.SURENDRAN NAIR.** **BY ADVS.SRI.C.S.AJITH PRAKASH SRI.T.ISSAC SRI.V.MADHUSUDHANAN SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENT(S):** **--------------** **1. THE BHARAT PETROLEUM CORPORATION LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, BHARAT BHAVAN, 4&6, CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI 400 001.** **2. THE DIRECTOR (HR), BHARAT PETROLEUM CORPORATION LTD., BHARAT BHAVAN, 4&6, CURRIMBHOY ROAD, BALLARD ESTATE,, MUMBAI 400 001.** **3. THE GENERAL MANAGER (HR), BHARAT PETROLEUM CORPORATION LTD., KOCHI REFINERY, AMBALAMUGAL, KOCHI-682302. 4. THE REFINERY EMPLOYEES UNION (KRL), REPRESENTED BY ITS GENERAL SECRETARY, AMBALAMUGAL, KOCHI-682302. * ADDL.R5 & R6 IMPLEADED** **5. COCHIN REFINERIES WORKERS' ASSOCIATION, REG.NO.7-82/91, VPP 1/427, AMBALAMUGAL, COCHIN-682302, REPRESENTED BY ITS JOINT SECRETARY. ADDL.R5 IS IMPLEADED AS PER ORDER DATED 4/1/11 IN IA.NO.16978/2011.** **....2/-** **PJ** **..2..** **WP(C).No. 33441 of 2010 (E)** **----------------------------** ## **6. KOCHI REFINERIES WORKERS UNION,** **REG.NO.07-10/05, AMBALAMUGAL-682302, REP.BY ITS GENERAL SECRETARY, AMBALAMUGAL, KOCHI.** **ADDL.R6 IS IMPLEADED AS PER ORDER DAED 4/1/11 IN IA.NO.17855/2010.** **R1 TO3 BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI R4 BY ADV. SRI.P.RAMAKRISHNAN R5 BY ADV. SRI.TOM K.THOMAS R6 BY ADV. SRI.THAMPAN THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 33441 of 2010 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** ## **---------------------** - **P1: COPY OF THE CIRCULAR NO.HRS.S.LTS.CON DATED 22/5/2008 ISSUED BY THE CHIEF MANAGER, HRS OF THE R1 COMPANY** - **P2: COPY OF THE REPRESENTATION DATED 11/5/09 SUBMITTED BY THE PETITIONER TO THE R2** - **P3: COPY OF THE CIRCULAR NO.TU/02/2009 DATED 1/7/2009 ISSUED BY THE R3** - **P4: COPY OF THE JUDGMENT DATED 10/12/2009OF THIS HON'BLE COURT IN WPC.34399/2009** - **P5: COPY OF THE JUDGMENT DATED 8/2/10 OFTHIS HON'BLE COURT IN WA.179/10** - **P6: COPY OF THE NOTICE DATED 11/8/10 ISSUED BY THE SENIOR MANAGER (IR) OF THE R1** - **P7: COPY OF THE NOTICE DATED AND 19/8/10 ISSUED BY THE SENIOR MANAGER (IR) OF THE R1** - **P8: COPY OF THE REPRESENTATION DATED 5/10/10 SUBMITTED BY THE PETITIONER TO THE R3** - **P9: COPY OF THE NOTICE DATED 19/10/10.** - **P10: COPY OF THE REPRESENTATION SUBMITTED BY THE DEPONENT ON BEHALF OF THE UNION** - **P11: COPY OF THE RECORD OF NOTES OF DISCUSSION WITH THE BPCL MAZDOOR SANGH (BMS) DATED 3/6/16.** **RESPONDENTS' EXHIBITS** - **---------------------** - **R4(A): COPY OF THE LETTER DATED 3/10/02 WRITTEN BY THE PETITIONER TO THE REGISTRAR OF TRADE UNION** - **R4(B): COPY OF REPORT DATD 1/11/02 OF THE ALO, PERUMBAVOOR** - **R4(C): COPY OF LETTER DATED 3/10/03 OFFERING THE STATUS OF RECOGITION TO THE R4** - **R4(D): COPY OF LETTER DATED 7/10/03 GRANITING FORMAL RECOGINITION TO THE R4** - **R4(E): COPY OF SCHEME OF AGALGAMATION** - **R4(F): COPY OF COMPLAINT DATED 25/11/09 SUBMITTED BEFORE THE ASSISTANT LABOUR COMMISSIONER (CENTRAL).** - **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K. VINOD CHANDRAN, J.** ## **==================** ## **W.P.(C) No.33441 of 2010** ## **==================** ## **Dated this the 23[rd] day of August, 2016 J U D G M E N T** The petitioner is concerned with the implementation of the policy as revealed in Ext.P3, which the management is said to have undertaken before this Court as recorded in Ext.P4 judgment. The petitioner, in effect wants this Court, to issue a mandamus against the Management Company to ensure that no Union of workmen other than the Unions having at least 25% representation of the total workmen are called for negotiations. The petitioner Union, who admittedly has around 36% representation of the total workmen, rely on the undertaking seen from Ext.P4, made by the Management Company. Ext.P4 was passed in a writ petition filed by the additional 6[th ] respondent against the policy decision of the Management, as revealed from Ext.P3. Learned counsel for the petitioner also relies on a decision of the Hon'ble Supreme Court in _**Food Corporation of India**_ W.P.(C) No.33441/2010 - : 2 :- ## _**Staff Union v. Food Corporation of India and Others**_ _**[(1995) Supp (1) SCC 678]**_ to urge that the intention behind a Trade Union having majority representation, being called for negotiations, is to maintain industrial peace and to ensure that the majority will binds the workmen. 2. Learned Counsel for the 6[th] respondent Union submits that there is no right on the petitioner to seek implementation of a letter as seen at Ext.P3 nor can the management be held down to the undertaking merely because they had decided to include the other representative Unions also in the negotiation. Reliance is placed on the decision in _**Praga Tools Corporation v. C.V.Imanual and others [(1969) SCC 1306]**_ wherein it was categorically held that a writ would lie only for enforcement of any of the rights conferred by Part III of the Constitution or for any other purposes. 3. It is trite that a mandamus would issue only when there is available a right and a corresponding duty imposed on the authority; which the authority has failed to discharge **Dr.Rai Shivendra Bahadur V. Governing body of the Nalanda College, Bihar Sharif & Others (AIR 1962 SC 1210)** . In the present case what the petitioner Union seeks is to ensure that W.P.(C) No.33441/2010 - : 3 :- Unions having representation of 25% of workmen alone are called to the negotiating table. It cannot but be immediately observed that, it is the Management's prerogative to decide on who should be called to the negotiating table, subject only to the reservation that the majority-Unions necessarily have to be participated in the negotiation. ## 4. As can be seen from _**Food Corporation of India Staff**_ ## _**Union v. Food Corporation of India and Others [(1995)**_ _**Supp (1) SCC 678]**_ the Trade Unions owe their very existence to further the cause of collective bargaining and only a settlement entered into with a majority Union or Unions would have a binding flavour as provided in Section 18(3) of the Industrial Disputes Act, 1947 (ID Act for short). The first requirement as declared is a registration under the Trade Unions Act, 1926; which the 6[th] respondent has. The cited decision is an authority for the above and then devises a method by which an election (referendum) could be conducted by 'secret ballot' to pin point those Unions having representation and confidence of the majority of workmen. This exercise was on the request made by the parties therein; definitely worthy of emulation in a situation warranting such identification. The decision does not at all further W.P.(C) No.33441/2010 - : 4 :- the cause ventilated by the petitioner herein; to keep out the 6[th] respondent who has about 15% representation of the workmen. The mere fact that certain representative Unions did not have workmen, to the extent as declared in the policy of the Management, cannot be an impediment on the Management calling such Unions also to the negotiating table. 5. The ID Act and the conciliation contemplated there, as also the binding nature of a settlement arrived at with the majority Unions, is designed in such a manner to ensure industrial peace. There can hence be no claim raised by an individual worker or a minority Union, to be called to the negotiating table. The prerogative to call majority Unions only to the negotiating table, is on the Management, so as to avoid solitary and disparate claims being raised, which do not affect the majority of workmen. However, if the management decides to call, even a Trade Union which do not have a representation as required in Ext.P3, it cannot be said that there is any illegality perpetrated. 6. As has been noticed, the petitioner who is a Trade Union having around 36% of representation has a right to be called to the negotiating table but does not have a right to say that none W.P.(C) No.33441/2010 - : 5 :- or any others should not be called for such negotiations. The collective bargaining exercise is made more effective by inviting even a minority Union for negotiations, especially when the Management decides so to do. The decision so taken definitely is grounded on the view of the Management; that such participation would not delay the negotiations or impede the signing of an agreement. 7. In such circumstance, this Court is not inclined to exercise extra ordinary jurisdiction, so as to prevent a Union having substantial representation but not up to 25% being invited to the negotiating table by the Management. The right conferred on a majority Union as per the ID Act and based on the policy, is confined, to be invited for negotiations. There can be no right claimed to prevent a minority Union from being invited for negotiations. A settlement entered into with a minority Union alone, would have no statutory force, on the majority of workmen, but that cannot lead to a total bar from participation of such Union, if desired by the Management. 8. The learned counsel for the petitioner also submits that being a Company registered in Mumbai, the Unions within the State of Maharashtra are called to the negotiating table only in W.P.(C) No.33441/2010 - : 6 :- accordance with the prescriptions under the Maharashtra Recognition of Trade Unions and Prevention of unfair Labour Practices Act, 1971 and the Head Office adopts a uniform policy all over the Country with respect to the various Unions and this has to be applied to the Refinery in the State of Kerala also. This is a matter of internal adjustments which the Management is directly concerned with and in the case of the Refinery in the State of Kerala, the negotiations are done by the Management having regional control over the affairs of the Company. The caveat so put forth by the petitioner is also of no avail, for reason of the conclusions arrived herein before. The functions of the Management are best left to them and a Trade Union cannot dictate terms or claim monopoly to be participated in the conciliation proceedings under the ID Act. The writ petition is dismissed. No costs. Sd/- ## **K. VINOD CHANDRAN , Judge** al/-