Sibykutty Francis v. Kerala State Electricity Board Ltd. & connected cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939** ## **WP(C).No. 18766 of 2017 (U)** **----------------------------** **PETITIONER(S): ------------------------** **SIBYKUTTY FRANCIS, SENIOR SUPERINTENDENT, OFFICE OF THE FINANCIAL ADVISOR, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.** **BY ADVS.SRI.P.RAVINDRAN (SR.) SMT.APARNA RAJAN** ## **RESPONDENT(S):** **------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695 004.** **2. THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695 004.** **3. THE SECRETARY, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695 004.** **4. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695 004.** **TS** **WP(C).No. 18766 of 2017 (U)** **----------------------------------------** ## **5. BYJU V.Y,** **SUB ENGINEER (ELECTRICAL) 220 KV SUB STATION, KERALA STATE ELECTRICITY BOARD LTD., EDAMON, KOLLAM-691 307.** **R1 TO R 4 BY ADVS. SRI.M.K.THANKAPPAN, SC SMT.ANEETHA A.G., SC R5 BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.11.2017, ALONG WITH WPC. 19379/2017 AND CONNECTED CASES, THE COURT ON 13.12.2017 DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 18766 of 2017 (U)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 04.06.2011.** - **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION OF THE 5TH RESPONDENT DATED 04.03.2017.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.P[C]NO.11027/17 DATED 30.03.2017.** **EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 29.04.2017.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 10.05.2017.** - **EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE BYELAW OF THE TRADE UNION.** - **EXHIBIT P7 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 30.05.2017.** - **EXHIBIT P8 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 19.01.1980.** - **EXHIBIT P9 TRUE COPY OF THE CIRCULAR ISSUED BY THE 1ST RESPONDENT DATED 05.01.2002.** - **EXHIBIT P10 TRUE COPY OF THE ARTICLES OF ASSOCIATION OF THE COMPANY.** **EXHIBIT P11:- TRUE COPY OF THE COMMUNICATION DATED 30.6.2017** **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT. R5(A):_ TRUE COPY OF BOARD ORDER DATED 19.1.1980.** **EXHIBIT R5(B):- TRUE COPY OF THE JUDGMENT DATED 24.9.2012 IN WPC.NO.16340/2011 OF THIS HON'BLE COURT.** **EXHIBIT R5(C):- TRUE COPY OF BOARD ORDER DATED 6.7.2013.** **TS** ## **WP(C).No. 18766 of 2017 (U)** ## **----------------------------------------** **EXHIBIT R5(D):- TRUE COPY OF THE RELEVANT EXTRACT OF THE LONG TERM SETTLEMENT IMPLEMENTED IN THE BOARD AS PER ORDER DATED 3.3.2016 IN THE CASE OF EMPLOYEES.** **EXHIBIT R5(E):_TRUE COPY OF THE RELEVANT EXTRACT OF THE LONG TERM SETTLEMENT IMPLEMENTED IN THE BOARD AS PER ORDER DATED 3.3.2016 IN THE CASE OF OFFICERS.** **EXHIBIT R5(F):- TRUE COPY OF THE CIRCULAR DATED 5.1.2002 ISSUED BY THE BOARD.** **EXHIBIT R5(G):- TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER DATED 28.4.20`17 ISSUED BY THE BOARD APPOINTING SRI.PRANJUSH EXHIBIT R5(H):- TRUE COPY OF THE TRIPARTITE AGREEMENT EXECUTED BY THE BOARD WITH THE 3 RECOGNIZED TRADE UNIONS. EXHIBIT R5(I):- TRUE COPY OF THE CIRCULAR DATED 13.6.2017 ISSUED BY THE BOARD.** ## **/TRUE COPY/** **PS TO JUDGE** **TS** **'CR'** ## **K. VINOD CHANDRAN, J.** **===================== W.P.(C)Nos.18766- U, 19379-V, 29859-F and 34761 of 2017-U ================================ Dated this the 13[th] day of December, 2017** ## **JUDGMENT** Whether there is distinction the any among employees of the respondent Board; categorizing them as Officers and Workmen. Whether there is any bar on the so called Officers, from being members and office bearers of the Trade Union of Workmen. These are the two issues raised before this Court in the aforesaid writ petitions. 2. The petitioners are all Senior Superintendents/ Assistant Engineers under the Kerala State Electricity Board Ltd. They had been going on with their trade union activities, associating themselves with the trade unions of employees of the Board for long, even after their promotion to the present 2 W.P.(C) No.18766/2017 & connected cases posts. Some were elected as Office Bearers of a Trade Union and invited by the Management for the negotiations initiated between the Management and the Workmen to arrive at long term settlements. The others too participated actively in the union activities. 3. The petitioners challenge two orders one dated 30.05.2017 and the other dated 19.08.2017. The order dated 30.05.2017 is produced as Ext.P7 in W.P.(C) No.18766 of 2017 and is passed in compliance with the directions in W.P.(C) No.11027 of 2017, as evident from Ext.P3 produced therein. Ext.P3 is a judgment in a writ petition filed by a Sub-Engineer in the cadre of workmen, the party respondent in these writ petitions; relying on a Board Order and a Circular issued by the Chairman, prohibiting personnel in the officers cadre from indulging in trade union activities. The workman complained that the party respondents, who are in the officers cadre, 3 ## W.P.(C) No.18766/2017 & connected cases continued as members of trade unions, got elected as office bearers and participated on behalf of the workmen in negotiations with the management. Ext.P7 relied on Board Order No. E.A. II – 18722/73 dated 19.01.1980 and Circular No. PSI/2946/2001/22 dated 05.01.2002 of the Chairman of the Board to find that the employees who get promoted to the Officers cadre like Assistant Engineer and Senior Superintendent shall not after such promotion indulge in trade union activities. 4. The order of 19.08.2017, produced as Ext.P7 in W.P.(C) No.29859 of 2017 was also to the same effect, directing all employees in the officers cadre to desist from trade union activities and to sever all connections with the trade union of workmen. It was also directed that all promotions effected to the officers category, should be necessarily after obtaining a written declaration from the employee concerned, as to abstaining from trade union activities, in the appended format. The petitioners 4 W.P.(C) No.18766/2017 & connected cases though promoted earlier were directed to make such undertaking. 5. The learned Senior Counsel led the arguments on behalf of the petitioners. All the petitioners were promoted as Assistant Engineer/Senior Superintendent after which they continued to be members and office bearers of the Kerala Electricity Employees Confederation, which was also approved by the Management of the Board as is seen from Ext.P1 in W.P.(C) No.18766 of 2017. The 5[th] respondent filed a complaint before the Chief Engineer, Ext.P2 and approached this Court resulting in Ext.P3. In Ext.P3, all the petitioners herein and some others were impleaded as respondents. Ext.P7 produced in W.P.(C) No.18766 of 2017 came to be passed finding that the respondents 5 to 10 in the earlier writ petition were acting against the Board Order and Circular, which are still in force. The said persons were directed immediately to abstain from all kinds of trade union 5 W.P.(C) No.18766/2017 & connected cases activities. Later, the petitioners submitted that they were being proceeded with departmentally and hence on 13.06.2017, this Court granted an interim stay of the disciplinary proceedings initiated, only for reason of the participation of the petitioners in trade union activities. Later to that, the subsequent order dated 19.08.2017 was passed, which is produced as Ext.P7 in W.P(C ) No. 29859 of 2017 and challenged. 6. The learned Senior Counsel would assert that there was no differentiation or categorization of the employees of the erstwhile Board or the present Company into officers and workmen. On enacting the Electricity Supply Act, 1948 (for brevity 'the Act of 1948); the Kerala State Electricity Board was constituted by a notification in the official Gazette. The Board was to be a body corporate as per Section 12 of the Act of 1948. The power to make regulation, under Section 79 of the Act of 1948, was conferred on the Board; to be made by notification in 6 W.P.(C) No.18766/2017 & connected cases the official Gazette. Section 79(c) of the Act of 1948 reads as follows: “ the duties of [officers and other employees] of the Board and their salaries allowances and other conditions of service.” (sic) 7. Despite the specific power so conferred on the Board to categorize the employees as officers and other employees, there is no notification published to that effect. Subsequently, the Electricity Act, 2003 (for brevity 'the Act of 2003) came into force, wherein also, the Board continued its existence as before, of a corporate entity. Therein under Part XIII re-organization of the Board was contemplated. Under the said part, on the transfer scheme being published or such other date as stipulated by the State Government, all rights and liabilities including the interest in property which belonged to the State Electricity Board would vest in the State Government and then there would be vesting of the same in the new Company to be formed. There were also transition provisions, insofar as the 7 ## W.P.(C) No.18766/2017 ## & connected cases orders made under the erstwhile Board, continuing to have effect in the Company till new regulations are made. Neither the erstwhile Board nor the new Company made any categorization of employees as Officers and Workmen. 8. The definition of Workmen under the Industrial Disputes Act, 1947 ( for brevity the ID Act) is specifically pointed out to say that even supervisors are included under the definition of workman, provided the wages are within the limit as seen from the ID Act. The Trade Unions Act, 1926, though does not provide for a separate definition of workmen, it defines the term, under the definition of trade dispute. The definition takes in all persons employed in trade or industry whether or not in the employment of the employer; with whom the trade dispute arise. Hence every employee would come within the definition of a workman. The Kerala Recognition of Trade Unions Act, 2010 adopts the definition of workmen as in the ID Act. 8 W.P.(C) No.18766/2017 & connected cases 9. **O.K Ghosh and Another** v. **E.X.Joseph [AIR 1963 SCC 789]** is relied on to contend that the petitioners' right under Article 19(1)(c) of the Constitution of India cannot be easily interfered with, unless there is a restriction imposed on the specified grounds under Article 19(4). The right to form an Association is a fundamental right which cannot be curtailed even by a legislation, unless it satisfies the test of reasonableness as provided in Article 19(4). An employer definitely cannot restrict the employees freedom to so form an association and become a part of it. Even a mere categorization of the employees as Officer and Workman, would fall foul of Article 19 unless a law is enacted to that end. **Smt. Damyanti Naranga v. The Union of India and Others [1971 (1) SCC 678]** was urged to further buttress the contention under Article 19(1)(c). **Bokajan Cement Corporation Employees Union** v. **Cement Corporation of India Ltd. [2004 (1) SCC 142]** is relied on to 9 ## W.P.(C) No.18766/2017 & connected cases contend that the membership acquired in a trade union cannot be subjected to automatic cessation on a promotion , if at all, to the officer category. The petitioners are perfectly justified in continuing their trade union activities, assert the Senior Counsel. 10. It is also argued that the petitioner in W.P. (C) 18766 of 2017, in his current post, was granted higher grade applicable to workmen by Ext.R1(a), which itself would indicate that the petitioner even after promotion to the post of Senior Superintendent, remains in the workman category. The petitioner's duties are also clerical in nature and he has not been granted any supervisory powers. The other petitioners also take similar contentions as to their status. The learned Counsel for the petitioner in W.P.(C) NO. 34761 of 2017 would place reliance on the decision of the High Court of Karnataka in **Tool Room and Training Centere s v. Assistant Labour Commissioner.** The Workmen as defined under the Trade Unions Act includes all 10 W.P.(C) No.18766/2017 & connected cases persons employed in the trade and industry and hence the petitioners are entitled to be members of the trade union, is the argument. 11. The learned Standing Counsel appearing for the KSEB asserts that the distinction insofar as the Officers and Workmen is accepted in industrial law; which does not require any specific notification. The necessity for a notification is only when there are rules and regulations made to control the terms of service. There need be no specific notification designating the posts belonging to the officers cadre or the workmen category and the Board Order of 1980 (produced as Ext.P8 in W.P. (C) 18766 of 2017) is more than sufficient. The petitioner in the post of Senior Superintendent is drawing basic pay of Rs.79,250/- per month plus all other allowances; which itself takes him away from the definition of workman under the ID Act. The petitioner has also submitted a declaration that he would not refuse 11 W.P.(C) No.18766/2017 & connected cases promotion to the higher cadre as and when it is ordered by Ext.R1(b) in W.P. (C) 29859 of 2017. The promotion of all the petitioners to the cadre of Assistant Engineer/Senior Superintendent was regulated by the B.O. of 1980 (Ext.P8 in W.P. (C) 18766 of 2017). The Board referring to its counter affidavit in W.P. (C) 29859 of 2017 argues that, duly certified Standing Orders for workmen are produced as Ext.R1(d), which would not be applicable to persons, employed in the Managerial or in the administrative capacity. The Board has adopted Civil Service (Classification, Control and Appeal) Rules, 1960, which was challenged before this Court. The challenge was negatived as per the decision **1971 (1) KLT 780 V.O. Koruthu Vs. K.S.E.B** . Immediately it is to be noticed that on a reading of the aforesaid decision, there is no challenge to the Rules and this Court does not find any application, to the dispute raised herein. 12 W.P.(C) No.18766/2017 & connected cases 12. The learned Counsel for the party respondent refers to his counter affidavit in W.P. (C) 18766 of 2017 and the various documents produced therein. W.P.(C) No.16340 of 2011, was filed by some workmen on identical contentions, upon which Ext . R5(b) judgment was passed. In compliance with the directions, Ext.R5(c) order was passed in 2013, deciding not to allow non-workmen including pensioners, to represent the workmen in meetings held by the Board. Since the Board was in a transitional stage, implementation of the order was kept in abeyance until commencement of functioning of the new entity, the Kerala State Electricity Board Ltd. The petitioner in W.P. (C) 18766 of 2017 was a party in the writ petition and was also heard before the decision at Ext.R5(c). No challenge is seen made to the said decision. The party respondent also relies on **1996(4) SCC 378 S.B.I. Staff Association Vs. S.B.I,** which is relied on in Ext.R5(b) judgment, to contend that there could be no 13 W.P.(C) No.18766/2017 & connected cases representation of a trade union by Officers in the Managerial cadre of an industrial establishment. It is pointed out that as early as in the year 1980, the Board had issued Ext.R5(a) (Ext.P8) order, interdicting Managerial personnel from associating with trade union of Workmen. 13. It is submitted that different settlements are entered into for Workmen and Officers. The long term settlement entered into with the workmen are based on negotiations with the representatives of their trade unions and that of the Officers are after negotiations with the Associations of Officers. Ext.R5(d) is a memorandum of settlement arrived at with the trade unions. The categories and revised pay scales are available in Annexure1. These are the posts, the occupants of which are considered as workmen. The pay and allowances of Officers have been revised by ExtR5(e). The Officers cadre starts with Assistant Engineer/ Senior Superintendents / Divisional Accounts Officer / Senior 14 W.P.(C) No.18766/2017 & connected cases Confidential Assistant / Fair Copy Superintendent / Foreman Grade 1 and the highest cadre is Chief Engineer / Financial Adviser / Chief Internal Auditor. Reliance is also placed on the various terms and conditions of the tripartite agreement entered into between the Government of Kerala, the KSEB Ltd., the Trade Unions and the Associations of Officers, on the creation of the new entity. There is hence a clear demarcation of the cadres and no person in the Officers category can represent workmen or be an office bearer of the trade union of workmen. 14. At the outset it is to be noticed that the classification of employees in an organization as managerial personnel and workmen category is not to put one category against the other in an adversarial position. Supervision of work and effective control of employees is the back bone of any organization. The effective implementation of discipline, in work and amongst its employees, is necessary for the smooth 15 W.P.(C) No.18766/2017 & connected cases functioning of any organization; the development and progression of which inures to the benefit of all the employees. The management personnel are thus entrusted with the general supervisory control of the workmen category. This has been the norm in any establishment all over the world. In the special conditions existing in this country; to foster industrial climate and also protect the downtrodden class of workmen various welfare legislations were enacted. This was to especially ensure that the workmen, who come from a poor background are not exploited. 15. The need to provide a level playing field, by providing an organization of workmen and dedicated to their welfare was felt; from which arose the concept of collective bargaining. The workmen who were mainly from the down trodden marginalized sections of society were thus able to organize against the moneyed few, with whom the capital was 16 W.P.(C) No.18766/2017 & connected cases concentrated. The Trade Unions Act legalized such organizations and gave recognition to bonafide trade union activities, which till then were suppressed by persecution and threat of prosecution. ID Act, expanded the field of interaction between the employer and the employee. Industrial unrest was attempted to be quelled with the introduction of two institutions of prevention and settlement of industrial disputes; the Work Committees, consisting of both employers and workmen, and the Industrial Tribunals. The representatives of employers took care of the managements' interest and those of the workmen protected theirs. The ID Act also had a definition of workmen; such distinguishing status being conferred on the basis of nature of duties and the wages drawn. Any employee who did not fall under that definition did not get the protection available to that class nor could avail the remedies specially provided; and were then treated as management personnel. 17 W.P.(C) No.18766/2017 & connected cases 16. Considerable change has occurred over the years after independence especially with the opening up of the market economy in the last three decades. But the essential structure of an organization remains the same and there is a clear demarcation of management personnel and workmen category. There need not be any specific order categorizing such workmen and the functioning of an organization in its various facets would reveal the clear distinction made of the two category of employees. This does not require a specific differentiating order and a dispute raised, as to whether an employee is a workman or not will have to be agitated before the Tribunal or Courts constituted under the ID Act. 17. The petitioners do not and cannot claim that they are workmen under the ID Act. Their case is that there being no categorization into officers and workmen they cannot be prevented from participating in trade union activities. The 18 W.P.(C) No.18766/2017 & connected cases definition of workman as per the ID Act, includes a person entrusted with supervisory duties but excludes those supervisors who draw wages above the limit prescribed. There could also be no dispute raised as to the limitation of wages, being related to the date on which the same was brought in the statute; and the wages drawn in the similar post at that point of time. The present limitation was brought in, on 15.09.2010. None have a case that their posts would qualify a treatment as workman under the ID Act or that the wages of the post at the time of amendment was below that prescribed under the Industrial Disputes Act. Even if they have such a case this Court under Article 226 will not venture into an examination of whether the petitioners are workmen under the ID Act or not and would then relegate them to the remedy under the Act itself. 18. The Act of 1948 by Section 79 itself; indicates there being a clear categorization between the Officers and the 19 W.P.(C) No.18766/2017 & connected cases Employees. It cannot be said that a regulation has to be made and notified with the approval of the State Government for such categorization which is available under the industrial laws applicable. Section 79(c) of the Act of 1948 speaks of the duties of the officers and other employees of the Board and their salary and allowances and other conditions of service. The regulations to be made, with previous approval of the State Government, are in the case of clause (a), (d) and (j). Any regulation under clause (c) will require a notification but clause (c) itself contemplates a distinction of the employees as officers and other employees. It is the duties, salaries and other allowances and other conditions of service; the regulations for which have to be notified. There is also a Standing Orders applicable under the Industrial Employment Standing Orders Act,1946 which are applicable only to the cadre of workmen. There is no case for any of the petitioners that the Standing Orders are applicable to them or 20 W.P.(C) No.18766/2017 & connected cases that their emoluments were fixed by negotiations with the trade union of workmen. The designation of all of the petitioners are Assistant Engineer/Senior Superintendent, in the officers cadre. Before proceeding further, it would be appropriate, now, to notice the decisions cited. 19. **Damyanti Naranga** is in the circumstance of a virtual take over made of a society registered under the Societies Registration Act, 1860; declaring it to be an institution of national importance. The enactment was defended on the plea that the essential attributes of the society was not changed and the members could exercise the very same rights they earlier had; the statute being necessitated only to ensure that the administration be not affected and the object defeated for the mere reason of the internal squabbles. The effect of the statute was found to have drastically altered the constitution and composition of the society; interfering with the valuable right to 21 W.P.(C) No.18766/2017 & connected cases form an association and continue with full freedom to associate only those voluntarily admitted by the existing members. The principle under Article 19(1)(c) though reiterated, the context is totally inapplicable here. **Bokajan Cement Corporation Employees Union** considered whether a membership in the trade union ceases on retirement. In support of cessation it was argued that only a person who is in employment or engagement in the industry could be made a member. However the specific clause for cessation of membership did not have retirement as a contingency resulting in cessation of membership. The dictum cannot have any application in the instant case since the Board insists for a cessation of trade union activities on promotion to the officers cadre and promotion is a voluntary option to be exercised by the employee; on his free will. 20. **Government TR & TC's Supervisory and** **Officers Association** was a case in which the supervisory staff 22 W.P.(C) No.18766/2017 & connected cases and officers attempted registration of their association under the Trade Unions Act. The application was rejected finding that they are not workmen under the ID Act. The High Court found that going by the definition of workmen in the Trade Unions Act, there cannot be such refusal, since the registration is not dependent on the definition of workman under the ID Act; which is a later enactment. This would not help the petitioners, who are in the managerial cadre, to be allowed to represent the trade union of workmen; which question has to be considered also on the basis of the ID Act, which sanctions the procedure for conciliation and proportionate representation. 21. **O.K Ghosh** was a challenge to a rule prohibiting demonstrations and strikes in relation to any matter connected with service conditions and another rule prohibiting membership with an association of government servants; which is not recognized or whose recognition has been refused or withdrawn. 23 W.P.(C) No.18766/2017 & connected cases The first referred rule was found to be bad to the extent it deals with demonstrations but upheld in so far as strikes; finding that there is no fundamental right to strike work. The right to form an association guaranteed under Article 19(1)(c) was found to encompass within its ambit the right to demonstrate and also continue in an un-recognized association. The right to form association and unions being made subject to recognition from the Government was found to render, the right guaranteed under Article 19(1)(c), ineffective and illusory. It was so held on the reasoning that the refusal or withdrawal of recognition could be on grounds wholly unconnected with public order as spoken of in Article 19(4). 22. The Supreme Court however recognized that “ ...Government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst 24 W.P.(C) No.18766/2017 & connected cases Government employees and their efficiency may in a sense, be said to be related to public order.” (sic- para10). The Board Order passed in 1980 and the Circular of 2002 clearly restricts managerial personnel from trade union activities. Relevant also is the manner in which negotiations have been held for long term settlements with respect to fixation of pay and allowances, which are separately made for the officers and workmen category. However, as a practice, the Officers who continued to be members of the trade unions and being elected office bearers of trade unions, were attending negotiations for long term settlements convened between the management and the trade unions of workmen. This was sought to be prohibited by Ext.P7 order produced in W.P.(C) No.29859 of 2017 following the earlier Board Order of 1980 and Circular of 2002 . 23. The Board Order of 19.01.1980, which is produced as Ext. P8 in W.P.(C) No.18766 of 2017, mandate that all orders of 25 W.P.(C) No.18766/2017 & connected cases promotion to the category of Officers and Assistant Engineers should contain a clause in the following manner:- “this is a promotion to the category of Officers. The promotee will take charge of higher post only after relinquishing his/her membership, and connection with the trade unions”. This is an order which clearly indicated that promotion to the post of Assistant Engineers and above would be in the managerial cadre and a person getting promoted to that category has to relinquish his membership in the trade union of workmen. The petitioners having voluntarily took up such promotions, with open eyes cannot now take a different stance. The categorization of such posts as coming within the officers cadre, also did not require a notification as was earlier noticed. 24. Still the argument is that there is no law providing reasonable restriction and neither could the Boards Order or the Circular take the form of law as established by statute. The 26 W.P.(C) No.18766/2017 & connected cases specific contention raised by the petitioners is that the restriction in so far as the officers associating with the trade unions, violate their fundamental right under Article 19(1)(c) to form association or unions. Any law imposed “in the interest of sovereignty and integrity of India or the public order or ...” can be deemed to be a reasonable restriction as included in clause 19(4) of the Constitution. There is no law restricting the persons in the managerial cadre from associating with the trade unions, is the compelling argument. 25. This Court is unable to countenance such argument in the context of the ID Act and the Standing Orders Act. There can be no dispute, that the said statutes having been brought in, to ensure the welfare of the workmen category. It is also to provide for remedies for workmen, when there are managerial excesses; alternate remedies other than that provided under common law. The enactments aim at industrial peace, which is 27 ## W.P.(C) No.18766/2017 & connected cases necessary in the development of the country and also maintenance of public order. The above enactments in fact make a clear distinction insofar as workmen and provide for alternate expeditious remedies to protect them and also for being participated in deciding upon their terms and conditions which is a necessary concomitant of the collective bargaining exercise sought to be encouraged. The distinction of workmen category from the managerial cadre is specifically brought in by the ID Act. In the present case, there is a Standing Orders for workmen under the Standing Orders Act, which adopt the definition of workman under the ID Act. 26. This Court would think that the ID Act, more than takes care of the situation, which has been succinctly stated in ## **S.B.I Staff Association** as follows in para 9: **9.** Now coming to the contention that the scheme of Section 6 read with Section 22 of the Act is similar to that of Section 36 of the Industrial Disputes Act, 1947 in terms of which a workman is entitled to be represented in any proceedings under the Act by any member of the executive or 28 W.P.(C) No.18766/2017 & connected cases other office-bearers of a registered Trade Union, even though he is no longer in the employment of the industry, it may be pointed out that Section 3 is a complete answer to this submission. It may be seen that Section 3 of the Industrial Disputes Act provides for the constitution of a Works Committee consisting of the representatives of the employers and workmen engaged in the establishment. _It is significant to note that it clearly provides that the representatives of workmen shall be chosen in the prescribed manner from amongst the workmen engaged in the establishment and in consultation with the Trade Union, if any, registered under the Indian Trade Unions Act, 1926_ . Under the Industrial Disputes Act, the Works Committee so constituted is enjoined with the duty to promote measure for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon the matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters. It, therefore, becomes clear 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 exworkman of the establishment concerned or any other person. It would, therefore, not be correct to contend that having regard to the provisions of Section 36 read with Section 3 of the Industrial Disputes Act an honorary/temporary member or a private individual is entitled to represent the workmen in the matters aforesaid. While referring to the provisions of Section 36 of the 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 29 W.P.(C) No.18766/2017 & connected cases 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 the workmen, the disputes between the two and settlement thereof by negotiations with the assistance of their respective representatives. It is for all these reasons and as stated in their counter-affidavit by the respondents, that a practice and usage is followed by the respondent-Bank since decades whereby only serving employees represent the Union in bilateral discussions with the Bank and that this practice has been recognised by the “Staff Federation” also which is a body to coordinate the activities of various Unions/Associations of the employees of the State Bank of India and its associate Banks. This stand of the respondents has been fully supported by the Staff Federationintervenor. 27. The Standing Orders for workmen is produced by the Board in W.P.(C) No.29859 of 2017 as Ext.R1(d). The standing orders specifically exclude the persons working in managerial or administrative capacities and whose functions are mainly of managerial nature. From the various circumstances, it cannot be disputed that there was a distinction insofar as the employees being classified as managerial personnel and workmen. The Board Order of 1980 makes it clear that the cadre from Assistant 30 ## W.P.(C) No.18766/2017 & connected cases Engineer upwards will be treated as managerial cadre. Such classification made of Officers and Workmen does not require a notification or an approval of the State Government. This is a function, the Board can perfectly do by itself, based on the categorization as provided by the ID Act, since it is the inherent authority of the management to make such a classification to promote industrial peace. 28. Ext.R5(d) is the long term settlement entered into with the workmen, the pay and allowances of the respective posts in that category also having been decided as seen from Annexure-1. The posts and designations are specified in the settlement itself. The petitioners who were representing the trade unions also have no contention that the posts which they were occupying are governed by the long term settlement and allowances applicable to the workmen, were at any time, equated with theirs. The officers associations had negotiated a separate 31 W.P.(C) No.18766/2017 & connected cases revision of pay and allowances which is available in Ext.R5(e). The cadre of Officers as per the Board Order of 1980 is specifically seen to commence from the post of Assistant Engineer. The Senior Superintendent, is a post equivalent to that of an Assistant Engineer as seen from Ext.R5(e). The writ petitions are hence devoid of merit. 29. The petitioners would have to necessarily furnish an undertaking as indicated in Ext.P7 produced in W.P. No. 29859 of 2017. Before leaving the matter it cannot but be observed that the classification of managerial personnel/workmen category is also one of the measures to ensure industrial peace. The personnel employed, in the managerial cadre, if allowed to become office bearers of the trade unions and are permitted to participate in the negotiations as representatives of workmen; there could always be conflict of interest with workmen. The management interest 32 W.P.(C) No.18766/2017 & connected cases could also be compromised. In the present case, the Board was cautioned of such participation by some workmen who filed a writ petition before this Court numbered as W.P.(C)No.16340 of 2011 and by another; W.P.(C) No. 11027 of 2017. The workmen were of the opinion that their interest will be compromised if the managerial personnel were allowed to be office bearers of trade unions. The restrictions insofar as the managerial personnel; not being associated with the trade unions, is not one solely emanating from the management side. The workmen also were aggrieved by the same and challenged such participation. 30. There is a further argument based on Ext.R1(a) produced by the Board itself in W.P. (C) No. 29859 of 2017 that the petitioner remains a workman for reason of the grant of higher grade. The petitioner himself did not have a case that he is a workman. Again if at all he was wrongly granted that benefit, that would not confer such a status which was not there. The 33 W.P.(C) No.18766/2017 & connected cases Board would also be entitled to review the grant if it is wrongly submitted. The observation made is not to find the grant to be bad; but only to reject the contention raised. 31. The ID Act legalized and gave statutory recognition to industrial settlement by way of negotiated agreements between the Managements and the Trade Union of workmen, devised a method for proportionate representation of workmen through their recognized majority Trade Unions, provided for industrial dispute resolution by conciliation at the aegis of authorities constituted under the Act and on failure, adjudication by specially designated Courts and Tribunals. The legislation, with the avowed objective of ensuring industrial peace, gave life, purpose, meaning and effect to the concept of collective bargaining; which legislation is a reasonable restriction imposed on the managerial personnel from indulging, involving and interfering with such proceedings; on behalf of the workmen, 34 W.P.(C) No.18766/2017 & connected cases who are to be represented by people from amongst themselves. This restriction is in maintenance of public order and reasonably curtails the freedom of association guaranteed under Article 19(1) (c) of the Constitution of India, to that extent. 32. On the above reasoning, this Court does not find any sustainable ground to interfere with the orders impugned in the above writ petitions. The writ petitions are dismissed. It is an accepted fact that the petitioners even after promotion were allowed to participate in the negotiations as representatives of trade unions of workmen. Hence the disciplinary proceedings initiated for this prior conduct need not be proceeded with, however if subsequently they indulge in such activities they shall be liable to be proceeded with departmentally. Parties are left to suffer their respective costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE** SB/24/11/2017 // true copy // P.A to Judge