FACT Workers Organisation vs Fertilizers and Chemicals Travancore Limited & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944** ## **WP(C) NO. 28343 OF 2022** ## **PETITIONER:** FACT WORKERS ORGANIZATION REG.NO.07-43/95, UDYOGAMANDAL, ERNAKULAM-683501, REPRESENTED BY ITS GENERAL SECRETARY. BY ADVS. R.SANJITH C.S.SINDHU KRISHNAH P.S.ANJU SURAJ KRISHNAN SHALU JOSE RAHUL S.NATH ## **RESPONDENTS:** |1|THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED| |---|---| ||UDYOGMANDAL, ERNAKULAM-683501, REPRESENTED BY ITS| ||CHAIRMAN AND MANAGING DIRECTOR.| |2|THE CHAIRMAN AND MANAGING DIRECTOR,| ||FERTILISERS AND CHEMICALS TRAVANCORE LIMITED,| ||UDYOGAMANDAL, ERNAKULAM-683501.| |3|CHIEF GENERAL MANAGER(HR & A),| ||FERTILISERS AND CHEMICALS TRAVANCORE LIMITED,| ||UDYOGAMANDAL, ERNAKULAM-683501.| |4|REGIONAL LABOUR COMMISSIONER (CENTRAL),| ||OFFICE OF THE REGIONAL COMMISSIONER(CENTRAL),| ||OLIMUGHAL,VAYUSENA ROAD, THRIKKAKARA,| ||KAKKANAD, ERNAKULAM-682030| |5|DEPUTY REGISTRAR OF TRADE UNIONS OR DISTRICT LABOUR| ||OFFICER, 4TH FLOOR, CIVIL STATION,| ||KAKKANAD, ERNAKULAM-682030.| |6|FACT EMPLOYEES ASSOCIATION(CITU),| ||FERTILISERS AND CHEMICALS TRAVANCORE LIMITED,| ||UDYOGAMANDAL, ERNAKULAM-683501.| ||REPRESENTED BY ITS GENERAL SECRETARY.| WP(C) No.28343/2022 2 7 FACT WORKERS UNION, FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM -6683501. REPRESENTED BY ITS GENERAL SECRETARY 8 FACT EMPLOYEES CONGRESS(INTUC), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM -6683501. REPRESENTED BY ITS GENERAL SECRETARY 9 FACT EMPLOYEES ORGANISATION(BMS), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM-683501. REPRESENTED BY ITS GENERAL SECRETARY. 10 FACT(CD) EMPLOYEES ASSOCIATION, FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALAMEDU.P.O., ERNAKULAM-682303. REPRESENTED BY ITS GENERAL SECRETARY. 11 FACT (CD) EMPLOYEES SANGH, FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALAMEDU. P.O, ERNAKULAM-682303. REPRESENTED BY ITS GENERAL SECRETARY. 12 FACT (CD) WORKERS CONGESS (INTUC), FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, AMBALAMEDU.P.O., ERNAKULAM-682303. REPRESENTED BY ITS GENERAL SECRETARY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.28343/2022 3 ## **JUDGMENT** Proceedings dated 16.08.2022 of the Chairman & Managing Director of the Fertilizers and Chemicals Travancore Ltd., Udyogamandal are under challenge on behalf of the petitioner. The petitioner workers organization registered under the Trade Unions Act had earlier approached this Court with a writ in the nature of mandamus for commanding respondent Nos.1 to 3 i.e., the Fertilizers and Chemicals Travancore Ltd., the Chairman and Managing Director and Chief General Manager (HR&A) to take steps to conduct the referendum of the trade union at corporate level by way of secret ballot and also for grant of recognition. Those trade unions securing 20% votes as a recognised bargaining agent had approached this Court. 2. It was contentended that since the first respondent is a Central Government, the procedure for recognition of the trade union is different than the one prescribed under the Kerala Trade Union Recognition Act, 2010. There was a situation of not holding a referendum giving cause to the management for the purpose of negotiation. A controversy of such similar nature had already been noticed by the Supreme Court in _**FCI Staff Union v. FCI and**_ WP(C) No.28343/2022 4 _**others** (1995 KHC 583)_ envisaging the situation where unions are more than one and the question which arose for ponderance was “which of the trade unions claiming a right would have the representation of the workmen employees for the purpose of settlement, negotiations etc”. Even this Court in the judgment dated 07.07.1997 in O.P.No.20083 of 1995, also directed the respondents to hold the referendum among the employees. The grievance of the union was that no such referendum after 1997 had ever taken place and in the resolution held on 04.05.2022 submitted a representation dated 10.03.2022 to the Chairman cum Managing Director. This Court considering the aforementioned prayer vide judgment dated 30.05.2022 disposed of the Writ Petition by issuing directions to the respondents to take a call on the representation for holding the referendum as early as possible, in terms of the judgment of the Supreme Court by affording an opportunity of hearing to all trade unions. It is in compliance of the direction, the order has been passed which has been assailed on various grounds. 3. Learned counsel appearing on behalf of the petitioner submitted that the entire action of the respondents is discriminatory, illegal and unfair much less arbitrary inasmuch as WP(C) No.28343/2022 5 that there are 830 permanent workers employed in the first respondent and eight recognised trade unions are operating with the approval of the management. Out of eight trade unions, majority of them are for name sake, who do not have the support of the workers and basically are weakening the collective bargaining power of the workers. The CMD has not held the referendum for identifying the true bargaining agents of the workmen. Sections 6(2) and 6(4) of the Industrial Relations Code, 2020 clearly mandates that a registered trade union continue to have at least 10% of workers or 100 workers, whichever is less, subject to minimum of 7 as its member at all times. In few of the divisions there are altogether only six workmen, therefore, categorization of the two separate divisions vide impugned Ext.P1 is wholly illogical and unsustainable. The impugned order has brittled down the legislative intent of the Industrial Disputes Act. 4. Counsel for the establishment, owing to receipt of the advance copy has opposed the prayers and submitted that the order impugned has been passed strictly in the letter and spirit of the order. The referendum is being held segregating two unions which does not give any cause of action for the petitioner to assail. Writ has been filed only for delaying the holding of the referendum. WP(C) No.28343/2022 6 5. I have heard the counsel for the parties and appraised the paper book. ## 6. It would be apt to reproduce the relevant portion of Ext.P1 the order under challenge. The same reads as under : _“The Petitioner union, FACT Workers Organisation is functioning in Udyogamandal Complex only and have no stake in other Divisions of the Company. The direction of the Hon'ble High Court is to dispose off the Ext.P4 representation in accordance with the directions contained in the judgment of the Supreme Court and Ext. P1 judgment passed by the Court. The judgment of the Supreme Court in Food Corporation of India contains directions with regard to the conduct of secret ballot for referendum. The Ext. P1 judgment based on a Writ Petition filed by FACT (PD) Workers Organisation is related to FACT for conducting referendum in the erstwhile Petrochemical Division, which is now part of the Udyogamandal Complex. The main contention raised by the trade union is that the validity of the recognition granted based on Ext. Pl judgment has expired and so a referendum is to be conducted. As per the law existing, conducting of referendum in a Central Public Sector Unit is to be based on consensus with the trade unions or based on a judgment passed by a Competent Court. Under the circumstances, (1) based on the Ext. P1 judgment (2) since the period of validity of the referendum conducted on the basis of Ext. P1 judgment is over and (3) the erstwhile Petrochemical Division is now part of the Udyogamandal Complex, directions are issued for conducting of referendum for recognition of trade unions in Udyogamandal Complex of the Company. The mode and method of referendum shall be as per the norms laid down by the Supreme Court in the FCI judgment in respect of divisions other than Udyogamandal Complex, referendum may be based on the Clause (10) of Minutes dated 5.4.2022 between the Management and trade unions and after signing of the Long Term Settlement.”_ 7. On perusal of the same, the respondents have complied with the direction of this Court by holding a referendum for recognition of trade unions Udyogamandal complex of the Company which shall be as per the terms and norms laid down by the Supreme Court in the judgment in _**FCI Staff Union v. FCI and**_ WP(C) No.28343/2022 7 _**others (supra)**_ and in respect of the divisions other than Udyogamandal complex, referendum has been directed to be passed as per clause 10 of the minutes dated 5.4.2022 executed between the management and trade unions and after signing of the long term settlement. The direction contained in the judgment of this Court dated 30.5.2022 reads thus : _“5.Conceded facts are that petitioner is a registered Society and there are eight other trade unions. The Kerala Trade Union Act, 2010 provides that recognition would not be applicable as the respondent management is a public sector undertaking and it is under control of the Central Government. Matters pertaining to the offices of the Central Government i.e., Food Corporation of India has already been pondered by the Supreme Court in the judgment cited supra wherein paragraph No.4 following directions were issued._ _"4. We have perused the aforesaid documents. We direct that the following norms and procedure shall be followed for assessing the representative character of trade unions by the "secret ballot system"_ _(i) As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC)_ _(ii) The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour._ _(iii) The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer_ _(iv) The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/workers (categories III and IV) governed by the FCI (Staff) Regulations, 1971 bome on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the proforma prescribed by the CLC. The said list shall constitute the voters list (v) The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof to each of the unions for raising objections, if any. The unions_ WP(C) No.28343/2022 8 _will file the objections to the Returning Officer within the stipulated period and the decision of the Returning Officer shall be final._ _(vi) The FCI shall make necessary arrangement to:_ _(a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice board and also at other conspicuous places for the information of all the workers:_ _(b) print requisite number of ballot papers in the pro forma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions:_ _(c) the ballot papers would be prepared in the pro forma prescribed by the CLC in Hindi/English and the concerned regional language;_ _(d) set up requisite number of polling stations and booths near the premises where the workers normally work; and_ _(e) provide ballot boxes with requisite stationery, boards, sealing wax etc._ _(vii) The Returning Officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI._ _(viii) The election schedule indicating the dates for filing of nominations, scrutiny of nominations, papers, withdrawal of nominations, polling, counting of votes and the declaration of results, shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one month's time shall be allowed to the contesting unions for canvassing before the date of filing the nominations_ _(ix) To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration or the first day of filing of nomination._ _(x) The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer_ _(xi) At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters' list and advise him thereafter to procure the secret ballot paper from the Presiding Officer_ _(xii) The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon._ WP(C) No.28343/2022 9 _The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned. In the event of non production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI._ _(xiii) After the close of the polling, the Presiding Officer shall furnish detailed ballot paper account in the pro forma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer_ _(xiv) After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representative of each of the unions. All votes which are marked more than once spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof_ _(xv) The contesting unions through their representatives present at the counting place may be allowed to file applications for recounting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a given case if he is satisfied that there is reason to do so he may permit recounting. However, no application for recounting shall be entertained after the results of the votes are declared._ _(xvi) The result of voting shall be compiled on the basis of valid votes polled in favour of each union in the pro forma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence._ _(xvii) After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC_ _(xviii) The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition._ _(xix) It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The_ WP(C) No.28343/2022 10 _objection shall be heard by the CLC and dispose of within 30 days of the filing of the same. The decision of the CLC shall be final subject to before a competent court, if permitted under law."_ _6. Keeping in view that background, petitioner had approached this Court in 1997 as evident from order Ext.P1 and this Court had in paragraph No.2 passed the following directions:_ _" 2. A counter-affidavit has been filed in both the cases on behalf of the first respondent. The uniform contention urged by the first respondent in the said counter affidavit is as follows :_ _“However, this respondent does not have any objection as to referendum to be conducted for recognition of bargaining agents for a period of 5 years and recognising the unions securing a minimum of 20% or more votes of the total electorate provided the said referendum is conducted by the second respondent and the result intimated to this respondent as done in the case of previous referendum.”_ _In view of the above stand taken by the first respondent it is necessary to go into other questions raised in these writ petitions. The competent authority to hold the referendum is the second respondent. I therefore direct the second respondent, the Regional Joint Labour Commissioner, Kakkanad, Ernakulam to hold a referendum among the employees in the Petro Chemical Division of the Fertilizers and Chemicals Travancore Limited (FACT). The second respondent shall hold such referendum as expeditiously as possible, at any rate, within a period of three months from today and inform the result to the first respondent accordingly. The Original Petition is disposed of as above._ _7 After this one of the Trade Unions was recognised but the validity of the same expired and thereafter no such referendum was conducted. I am of the view that it is a fit case where directions are required to be issued to the respondents to take a call on the representation for holding the referendum as early as possible. Second respondent is therefore directed to take a call on the representation in accordance with the directions and the judgment of the Supreme Court and judgments passed by this Court in Ext.P1, by affording the opportunity to all the trade unions registered under the Trade Unions Act and recognised by the respondents. Let this exercise be undertaken within a period of two months from the date of receipt of a certified copy of the judgment. Writ Petition stands disposed of._ 8. On cumulative reading of the order and direction of this WP(C) No.28343/2022 11 Court, I am of the view that there is strict compliance of the order of this Court whereby the CMD has ordered for holding of the referendum for the purpose of recognizing the trade unions for the purpose of settlement/recognition. I do not find any illegality or perversity in the impugned order. Writ Petition sans merit and accordingly dismissed. Sd/- **AMIT RAWAL JUDGE** csl WP(C) No.28343/2022 12 ## **APPENDIX OF WP(C) 28343/2022** PETITIONER'S EXHIBITS - Exhibit P1 TRUE COPY OF THE PROCEEDINGS BEARING NO.CMD-C0-057 DATED 16/08/2022 OF THE 2ND RESPONDENT - Exhibit P2 TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.15901/2022 DATED 30/05/2022 OF THE HONOURABLE KERALA HIGH COURT. - Exhibit P3 TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 05/04/2022. - Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER BEARING NO.CMHR115 DATED 11/04/2014. - Exhibit P5 TRUE COPY OF THE TRANSFER ORDER BEARING NO.DGM (HR) EST.HO-221 DATED 02/04/2022. WITH TYPED COPY - Exhibit P6 TRUE COPY OF THE DRAFT STANDING ORDER FOR THE WORKMEN OF THE 1ST RESPONDENT. - Exhibit P7 TRUE COPY OF THE RECRUITMENT NOTIFICATION BEARING NO.07/2022 DATED 06/07/2022. - Exhibit P8 TRUE COPY OF THE LETTER DATED 18/04/2016 ISSUED BY THE PETITIONER TO THE CHIEF GENERAL MANAGER OF THE 1ST RESPONDENT. - Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 05/08/2019. - Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 29/03/2019 - Exhibit P11 TRUE COPY OF THE REPRESENTATION DATED 10/03/2022 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS : NIL