Sibykutty Francis v. Kerala State Electricity Board Ltd & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939 WA.No. 65 of 2018 IN WPC. 29859/2017** **AGAINST THE ORDER/JUDGMENT IN WP(C) 29859/2017 of HIGH COURT OF KERALA DATED 13-12-2017** ## **APPELLANT(S)/PETITIONER** **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 SRI.SREEDHAR RAVINDRAN SMT.LIZA MEGHAN CYRIAC** ## **RESPONDENT(S)/RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004** **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** **ADDL.4. BYJU V.J., SUB ENGINEER (ELECTRICAL), 220 KV SUB STATION, KERALA STATE ELECTRICITY BOARD LTD., EDAMON, KOLLAM - 691 307.** ***ADDL.R5. SUBASH BOSE, ELECTRICITY WORKER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LIMITED, ALAPPUZHA. *ADDL.R6. SAJITH V.R., ELECTRICITY WORKER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD LIMITED, ALAPPUZHA.** - **(*ADDL.R5 AND R6 ARE IMPLEADED AS PER ORDER DATED 6/2/2018 IN IA NO.98/2018)** **R1-R3 BY ADV. SRI.M.K.THANKAPPAN, SC, KSEB LIMITED** **R4 BY ADV. SRI.ELVIN PETER P.J. R4 BY ADV. SRI.T.G.SUNIL (PRANAVAM) R4 BY ADV. SRI.K.R.GANESH R5-R6 BY ADV. SRI.S.RAMESH BABU (SR.) R5-R6 BY ADV. SRI.N.KRISHNA PRASAD R5-R6 BY ADV. IIMAM.G.KARAT** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 6-02-2018, THE COURT ON 16/3/2018 DELIVERED THE FOLLOWING:** **WA NO.65/18** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A: TRUE COPY OF THE RELEVANT EXTRACT OF THE MEMORANDUM OF SETTLEMENT (U/S. 18 OF THE INDUSTRIAL DISPUTES ACT, 1947)** ## **RESPONDENT'S EXHIBITS** **ANNEXURE R5(a): TRUE COPY OF THE EXTRACT FROM B.O DATED 25.9.1989 REGARDING THE NATURE OF DUTIES OF A SENIOR SUPERINTENDENT.** **ANNEXURE R5(b): TRUE COPY OF THE RELEVANT EXTRACT FROM THE ORDER RELATING TO REVISION OF PAY OF OFFICERS IN THE KERALA STATE ELECTRICITY BOARD LILMITED WITH SPECIFIC REFERENCE TO THE POST OF SENIOR SUPERINTENDENT.** ## **//True Copy//** ## **PS to Judge** **Rp** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== W.A.No.65 of 2018 ============== Dated this, the 16[th] day of March, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ The appeal concerns a short issue as to whether an officer of Kerala State Electricity Board Ltd (for short KSEB) is entitled to continue as an office bearer of a registered trade union of workers. 2. The short facts that have arisen in the writ petition are as under:- Petitioner is the General Secretary of Kerala Electricity Employees Confederation, a trade union affiliated to the INTUC. Presently, he is working in the capacity as Senior Superintendent with a grade promotion. He entered service of KSEB w.e.f. 11/2/1993 as Cashier, promoted as Senior Assistant w.e.f. 13/10/1998 and Senior Superintendent effective from 6/12/2010. He was given second higher grade promotion effective from 13/10/2016 on completion of 18 years of service in the cadre of Senior Assistant and Senior Superintendent without change of WA No.65/2018 -:2:- duties and responsibilities. A complaint came to be filed alleging that petitioner, being in the position of officer category, is not entitled to hold the office of General Secretary of the Union. The matter came to be enquired and Ext.P3 order was issued by the Chief Engineer (HRM). It was observed that in KSEB Ltd, there are distinct trade unions for workmen and association of officers. In the case of employees who have become officers on promotion, they have to sever their connection with the trade unions for workmen by relinquishing their membership in the trade union and accordingly Board has issued order dated 19/1/1980 (Ext.P4) which strictly mandates that the employees on promotion to the office cadre are not entitled to participate in the trade union activities and they have to relinquish their membership and connection with the trade union. A Circular dated 5/1/2002 (Ext.P5) was also issued by the Chairman of KSEB reiterating that employees of KSEB who are in the officer cadre should sever all connections and relationship with trade unions and should not become office bearers of Trade Unions. Any violation of the above will be viewed seriously and disciplinary action will be taken against such officers. Accordingly, it was found that the officers WA No.65/2018 -:3:- whose cases were considered will have to abstain from all kinds of trade union activities thereafter. Ext.P3 was challenged in four separate writ petitions. One such writ petition is WP(C) No. 18766/2017. One of the contention raised by the petitioner was that KSEB Ltd., which is the new entity, has not issued any orders restricting officers from representing trade unions. Pursuant to the same, KSEB Ltd issued Ext.P7 order dated 19/8/2017 issuing the following directions:- _“1. All employees of Kerala State Electricity Board Limited who belong to Officer categories shall not engage themselves in trade union activities, either as ordinary member or office bearer, from the date of this order. Employees belonging to Officer categories who are presently holding office of Trade Unions shall sever all such relations with immediate effect._ _2. Hereafter, all promotions from workmen to Officers, shall be effected only after obtaining a written declaration from the employee concerned in the appended format.”_ 3. Petitioner by filing the above writ petition sought to quash Ext.P7. The main contention urged by the petitioner was that KSEB cannot place reliance on Board Orders or Circulars to regulate the service conditions of employees. As per Section WA No.65/2018 -:4:- 79(c) of the Electricity (Supply) Act, 1948, conditions of service of employees are to be framed by way of regulations. In so far as Ext.P7 is not backed by any such regulation, it is liable to be quashed. Further, it is contended that all persons are entitled to form an association or become member of an association which is a fundamental right guaranteed under Article 19(1)(c) of the Constitution of India and by issuing Ext.P7, the said right had been violated. 4. Before the learned Single Judge, respondent Board placed reliance on the Board Order dated 19/1/1980 as well as the circular Ext.P5 to indicate the powers of the Board by which officers were restricted from being office bearers of trade unions. The learned Single Judge while considering the writ petition along with certain other connected matters having placed reliance on the judgment in _**State Bank of India Staff Association v. State Bank of India and others**_ [(1996) 4 SCC 378] held that the Industrial Disputes Act (for short ID Act) which had given statutory recognition to industrial settlement by way of negotiated agreements between the managements and the trade union of workmen had made appropriate provisions with the WA No.65/2018 -:5:- object of ensuring industrial peace and therefore the said legislation is a reasonable restriction imposed on the managerial personnel from indulging, involving and interfering with such proceedings on behalf of the workmen who are to be represented by people from amongst themselves. The 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. It is therefore held that Ext.P7 does not suffer from any vires warranting interference. 5. Learned Senior counsel appearing for the appellant _inter alia_ contended that the judgment in _**State Bank of India Staff Association**_ (supra) has no application to the facts of the case. It is contended that the question to be considered is whether there is any statutory bar or restriction imposed on officers of KSEB in continuing as an office bearer of a trade union. He referred to various provisions of the Trade Unions Act and ID Act in order to contend that there is no such restriction imposed by the statutes. The Board orders as well as the circulars issued do not have the backing of any statutory regulation framed u/s 79 of the Electricity (Supply) Act, 1948 and therefore the judgment of the WA No.65/2018 ## -:6:- learned Single Judge is liable to be set aside. 6. Learned standing counsel appearing for the Board supported the judgment of the learned Single Judge and contended that petitioner is admittedly working in a Managerial post which is evident from the fact that petitioner is not a workmen as defined under the ID Act, 1947. It is also pointed out that Senior Superintendent is one among the persons included in the officers' pay revision order, and all along, the Board has considered the said post as an officer post coming under the Managerial cadre. 7. Learned counsel appearing for additional 4[th] respondent supported the judgment of the learned Single Judge and contended that Ext.R5(e), the revision of pay and allowances of officers, would clearly indicate that the Assistant Engineer/Senior Superintendent comes under Sl.No.1 with a revised scale of pay starting from `40,975/-. Reference is also made to Ext.R5(g) dated 28/4/2017 by which appointment was given to one Mr.Pranjush R. Chettyarambath as Assistant Engineer(Electrical) and one of the clauses is that the appointment is made in the category of officers and that he will not be allowed to participate in any trade union WA No.65/2018 -:7:- activities. He also referred to the tripartite agreement between the Government, KSEB Ltd and KSEB Employees' Unions and Associations. It is submitted that all the stake holders are represented by the respective office bearers and therefore if there is conflict with the officers and the workmen, an office bearer who is an officer cannot represent the workmen category. 8. Learned senior counsel appearing for respondents 5 and 6 placed specific reliance on the judgment in _**State Bank of India Staff Association**_ (supra) and contended that the said judgment applies to the facts and circumstances involved in the present case and therefore there is no reason to take a different view from what has been held in the said case. 9. First we shall consider whether the judgment in _**State Bank of India Staff Association**_ (supra) covers the issue on hand. In that case, the question raised was whether a person who had retired from the Bank can represent the Staff Association. One Mr.M.R.Awasthy was elected as General Secretary of Staff Association for a period of three years on 16/10/1994 in accordance with the bye-laws and Constitution of the Staff Association. His selection was confirmed by the Central WA No.65/2018 ## -:8:- Committee on 19/11/1994 as he was competent to represent the Staff Association. It was contended on behalf of the appellant that though M.R.Awasthy retired from the service of the Bank on 31/1/1995, he is entitled to continue as General Secretary of the Staff Association and represent the union and its members in the negotiations to be held with the management by virtue of the provisions contained under Section 6 of the Trade Unions Act read with the provisions contained under Section 22. After referring to Sections 6(e) and 22 of the Trade Unions Act, it was held that though the said provisions indicate that an ordinary or a temporary member may be an office bearer, it does not provide that such a member shall also 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 to which the trade union is connected. Proceeding further, the Apex Court considered the scheme of Sections 6 and 22 of the Trade Unions Act with that of Section 36 of the Industrial Disputes Act, 1947 which provides the representative capacity of workmen in any proceedings under the Act. It is observed that though under Section 36 of the ID Act, a WA No.65/2018 -:9:- workman can be represented by any member of the executive or other office bearers of a registered trade union, though he is no longer in the employment of the industry, Section 3 of the ID Act is a complete answer to the question. It is held at paragraph 9 as ## under:- _**“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 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_ WA No.65/2018 -:10:- _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 ex-workman 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 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 Federation-_ WA No.65/2018 ## -:11:- ## _intervenor.”_ 10. Coming to the facts of the said case, it was further held that as per the bye-laws of the Association, only a permanent employee can become a member. At the time when Mr.M.R.Awasthy was elected as General Secretary, he was an ordinary member. After attaining the age of superannuation on 31/1/1995, he was not elected as an honorary or temporary member in any special meeting of the General Council or of the Committees convened for that purpose. In the said circumstances, in view of Rule 9, M.R.Awasthy cannot legitimately claim his continuance as an ordinary member and General Secretary of the Union after his retirement from the service of the Bank. Proceeding further, it was again held that the meeting in which M.R.Awasthy was elected as General Secretary on 16/10/1994 was not a valid meeting. 11. Learned counsel appearing for the respondents placed much emphasise on the findings of the Apex Court with reference to the finding that under the ID Act, the representatives of the workman have to be chosen only from amongst the workmen already engaged in the establishment and not an outsider or an WA No.65/2018 ## -:12:- ex-workman of the establishment concerned and the finding that in view of the provisions of S.36 read with S.3 of the I.D. Act, an honorary/temporary member or a private individual is entitled to represent a workmen in such matters. 12. On the other hand, learned senior counsel appearing for the appellant submitted that the restriction to represent workmen by a person who is not a workman applies only in respect of Works Committee constituted under Section 3 of the ID Act. But, there is no legal impediment in an officer becoming an office bearer of a trade union. 13. Trade Union is defined u/s 2(h) of the Trade Unions Act as under:- _“(h) "Trade Union" means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions.”_ 14. Trade dispute is defined u/s 2(g) of the Trade Unions Act as under:- WA No.65/2018 ## -:13:- _“(g) "trade dispute" means any dispute between employers and workmen or between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and "workmen" means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.”_ ## 15. Section 6(e) of the Trade Unions Act provides for admission to members which reads as under:- _“(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 as [office-bearers] required under section 22 to form the executive of the Trade Union”._ 16. Apparently, ordinary members shall only be persons actually engaged or employed in an industry with which the trade union is connected. In so far as the trade union represents the workmen, ordinary members can only be workmen as they should be either engaged or employed in the industry. However, there could also be admission of honorary/temporary members who could act as office bearers in terms of S.22 to form the executive. S.22 reads as under:- WA No.65/2018 -:14:- ## _“2_ _**2. Proportion of office-bearers to be connected**_ _**with the industry.-** Not less than one-half of the total number of the office- bearers of every registered Trade Union in an unrecognised 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 officebearers 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.”_ WA No.65/2018 -:15:- 17. S.22 only indicates that not less than one half of the total number of office bearers of every registered trade union in an unrecognised sector shall be persons actually engaged or employed in an industry. Sub-section (2) further indicates that 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 further indicates that 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. 18. In the case on hand, we do not think that the judgment of the Apex Court in _**State Bank of India Staff Association**_ (supra) can be applied. As already indicated, the question raised in the said case was whether a retired employee can remain as an office bearer of the Association. The limitation that is provided and as held by the Apex Court in the said judgment is only for the purpose of constitution of a Works Committee consisting of representatives of employers and workmen and the representatives of the workmen shall be chosen in the prescribed WA No.65/2018 -:16:- manner from among the workmen engaged in the establishment and in consultation with the trade union. Therefore, as rightly contended by learned counsel for appellant, the insistence for the workmen alone to be an office bearer is only with reference to constitution of Works Committee. Section 2(lll) defines “office bearer” in relation to a trade union as including any member of the executive thereof, but not an auditor. Trade union is defined u/s 2(qq) of the ID Act as under:- _“(qq) “trade union” means a trade union registered under the Trade Unions Act, 1926.”_ ## 19. Section 3 of the ID Act reads as under:- _"_ _**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_ WA No.65/2018 ## -:17:- _under the Indian Trade Unions Act, 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 comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.”_ 20. No doubt, as held by the Apex Court in _**State Bank of India Staff Association**_ (supra), for the purpose of Section 3, the representatives of the workmen shall be chosen from among the workmen engaged in the establishment and in consultation with the trade union. But, there is no mandate either in the ID Act or under the Trade Unions Act that a workmen alone shall be a member or office bearer of a trade union. The Trade Unions Act recognises honorary or temporary members as well. The restriction imposed under Section 3 of I.D. Act cannot be imported to other provisions of the Act. Section 36 relates to representation of parties. A workmen in any proceeding under the Act could be represented by any member of the executive or other office bearer of a registered trade union of which he is a member. Section 36(a) by itself does not indicate that there is any restriction for a person not being a workmen to be an office WA No.65/2018 -:18:- bearer of a trade union. As rightly observed by the Apex Court, having regard to the provisions of Section 36, read with Section 3 of the ID Act, an honorary/temporary member or a private individual is not entitled to represent the workmen in a matter relating to Section 3 of the Act. Apex Court further held that the provisions of the Trade Unions Act, 1926 have to be harmonised with the provisions of ID Act. But, the judgment cannot be read to restrict a non workmen from being an office bearer of a trade union. But as already observed by the Apex Court, when it comes to a question relating to bilateral discussions, it may not be possible for such person to represent the workmen in a matter concerning the statutory obligations arising under Section 3 of the ID Act. 21. The High Court of Madras had occasion to consider an almost similar issue in _**L.Balasubramanian and another v. Indian Overseas Bank**_ , [CDJ 2014 MHC 6684]. That was also a case in which a few persons who got superannuated were permitted to participate in negotiations and discussions with the management in respect of employer-employee relationship including S.3 of the Industrial Disputes Act. One of the WA No.65/2018 -:19:- contentions raised on behalf of the writ petitioner was that in the light of the judgment in _**State Bank of Staff India Association**_ (supra), a person who ceases to be an ordinary member on his retirement, cannot represent the union. It was held at paragraphs 16, 17 and 21 as under:- _“16. Therefore, it is clear that the Bye-law provides for membership to outsiders. The Union in its General Council Meeting held on 17.7.2010 and 18.7.2010, has unanimously conferred the appellants/ respondents 3 and 4 with Honorary Membership for the Purpose of being electing to National Executive retrospectively from the date of their superannuation. 17. The judgment rendered in AIR 1996 SUPREME COURT 1685, on facts, can be distinguished for the reason that State Bank of India Staff Association Rules came up for consideration before the Hon'ble Supreme Court of India in the above cited decision and Rule 9(a) provide that an ordinary/honorary member will be eligible to occupy or continue in any post in the Central Committee, etc., and notwithstanding the same, a member of the above said Committees will forthwith cease to be such member if he ceases to be an ordinary/honorary member. The facts of the said case would disclose that the concerned individual has retired from the service of the State Bank of India on 31.1.1995, on attaining the age of superannuation and he was not elected as a honorary or temporary member in any_ WA No.65/2018 ## -:20:- _Special Meeting of the General Council and therefore, it was held that the said individual cannot legitimately claim his continuance as an ordinary member and General Secretary of the Union after his retirement from the service of the Bank. In the case on hand, amended Bye-law 4(b) provides for conferment of honorary members and by unanimous resolution, the appellants/respondents 3 and 4 were conferred with honorary membership from the date of superannuation and the first appellant/third respondent was unanimously elected as President and the second appellant/fourth respondent was unanimously elected as General Secretary and therefore, they can represent the Union.”_ _“21. Therefore, the appellants/respondents 3 and 4, who are elected as Honorary Members in the General Council Meeting held on 17.7.2010 and 18.7.2010, with effect from the respective date of superannuation, and acting as Office Bearers of the Union, can represent the Union, which is a majority Union, and as such, they are entitled to participate in the negotiations and discussions with the management of the first respondent-Bank, pertaining to employer-employee relationship.”_ 22. In yet another judgment of the Apex Court in _**Bokajan Cement Corporation Employees' Union v. Cement Corporation of India Ltd.**_ [(2004) 1 SCC 142], the Apex Court WA No.65/2018 -:21:- had occasion to consider the scope and effect of S.6(e) of the Trade Unions Act. The question considered was whether on cessation of employment, the employee would lose the right to continue as a member of the trade union. After evaluating the judgment in _**State Bank of India Staff Association**_ (supra), it was held at paragraphs 16 to 19 as under:- _**“16.** There is no provision in the Act or the constitution of the trade union providing for automatic cessation of membership on cessation of employment._ _**17.** In view of the provisions in the constitution of the trade union and in absence of any provision providing for cessation of membership as a result of cessation of employment, it cannot be held that an employee would cease to be a member of the trade union on termination of his employment._ _**18.** Reliance has, however, been placed on behalf of the respondent upon the decision of this Court in State Bank of India Staff Assn. v. State Bank of India where it was held that the management was not supposed to negotiate with the retired employee as General Secretary of the Bank’s Staff Association since he ceased to be an employee of the Bank after retirement. In the said case, the relevant rules and the constitution of the State Bank of India Staff Association provided that after retirement from the Bank’s service, ordinary members shall not continue to be such members. Considering the said Rules, it was held that: (SCC p. 387, para 10) (emphasis supplied)_ WA No.65/2018 ## -:22:- _“A cursory look at Rule 5 will make it clear that to become an ordinary member of the Association one has to be a permanent employee of State Bank of India and at the same time not below the age of 18 years whereas Rule 6 provides that a person who is not a permanent employee of the Bank as contemplated under Rule 5 but has some sympathy with the objects and spirits of the Union he may be elected honorary member at the triennial or special meeting of the General Council etc. … convened for the purpose. Further, according to Rule 9 ordinary members after retirement from the Bank’s service shall not continue to be such members while clause (a) of Rule 9 provides that an ordinary/honorary member of the Association will be eligible to occupy or continue in any post in the Central Committee/Central Working Committee/Circle Committee/Unit Committee but such ordinary/honorary member of the aforesaid Committees will forthwith cease to be such member if he ceases to be an ordinary/honorary member, notwithstanding anything contained to the contrary in the Rules.”_ _**19.** State Bank of India Staff Assn. case does not lay down that clause (e) of Section 6 provides for cessation of membership. In our view, it only provides for admission of membership. In the absence of any provision in the constitution of the trade union for automatic cessation of membership as a result of cessation of employment, it cannot be held that an employee would cease to be a member of the trade union in such an eventuality.”_ 23. It is true that no specific law/regulation had been framed regulating the conditions of service or any restriction being WA No.65/2018 -:23:- imposed other than Exts.P4 and P5 referred above. Exts.P4 and P5 can only be stated as internal circulars which had been followed by the Board for quite some time. Therefore, when a practice is being followed, which is treated as a condition for service, necessarily, it has binding force and cannot be ignored. 24. Still further, as matters stand now, a Company had been constituted as Kerala State Electricity Board Ltd., and when the Company had taken a decision in the form of Ext.P7, the restrictions imposed under Section 79 of the Electricity (Supply) Act will not apply. By notification dated 31/10/2013, which appeared in the Kerala Gazette as per SRO No.871/2013, by virtue of powers under Sections 131 and 133 of the Electricity Act, 2003, the State Government had taken over the functions, properties, interests, rights, obligations and liabilities of Kerala State Electricity Board re-vesting thereof under a Scheme known as Kerala Electricity Second Transfer Scheme (Re-vesting), 2013. This had been effected based on a tripartite agreement entered into between the Government, KSEB Ltd and KSEB Employees' Unions for protection of service conditions and payment of terminal benefits. The Scheme clearly indicates that there are two WA No.65/2018 -:24:- specific organizations viz., Trade Unions and Associations of Officers. As per the Scheme, there is an absolute transfer of all the functions, properties interests, rights, obligations and liabilities of the Kerala State Electricity Board in the State Government and a re-vesting thereof by the State Government in the Kerala State Electricity Board Limited, a corporate entity. Clause 6 of the Scheme indicates that the transfer of personnel shall be subject to the terms and conditions of Sections 133 and 134 of the Act and from the date of transfer, the personnel of Kerala State Electricity Board shall stand assigned to the services of the transferee and they shall continue to officiate in the place where they are posted on the date of re-vesting and thereafter shall be under the disposal of the transferee. Clause 6(1), (2), (3) and (4) further indicates as under:- _“_ _**6. Transfer of Personnel by the State:** (1) The transfer of personnel shall be subject to the terms and conditions contained in sections 133 and 134 of the Act. (2) From the date of the transfer, the personnel of the Kerala State Electricity Board shall stand assigned to the services of the Transferee and they shall continue to officiate in the place where they are posted on the date of re-vesting and thereafter shall be under the disposal of the Transferee:_ WA No.65/2018 -:25:- _Provided that the transfer shall be governed by the conditions enumerated in Schedule-B of this Scheme;_ _(3) The Transferee shall absorb all permanent eligible personnel so transferred to it in its permanent services and the personnel shall form part of the services of the Transferee, in the post, scale of pay etc. in accordance with the orders that may be issued by the Transferee for this purpose, without any further act, deed or thing to be done by the State Government or the personnel and the State Government or the Transferee shall issue appropriate orders in the case of all other provisional, contingent, part time, temporary personnel engaged by the Board of KSEB prior to the vesting._ _(4) All the employees shall remain on the rolls of the Kerala State Electricity Board Limited who shall be responsible for their pay, benefits and other service conditions. The personnel needed by the SBUs shall be deputed to them and their cost shall be accounted as part of the cost of the SBUs. However, the responsibility of managing the personnel shall be with the Kerala State Electricity Board Limited.”_ 25. Ext.P7 is the impugned order by which the company had issued orders, clearly indicating that all employees of Kerala State Electricity Board Ltd., who belong to officer categories shall not engage themselves in trade union activities, either as ordinary member or office bearer, from the date of this order. Employees belonging to officer categories who are presently holding office of WA No.65/2018 -:26:- trade unions shall sever all such relations with immediate effect. This order is issued by a Company viz., KSEB Ltd., which is enforceable under law and is not open for challenge. It forms part of the conditions of service of employees of the Board after the vesting of the Board in the Company and has legal force which cannot be ignored. The said decision of the KSEB Ltd only amounts to reasonable restrictions as conditions of service and it cannot be said that it violates Article 19 (1)(c) of the Constitution of India. 26. That apart, the only pleading in the writ petition is that the petitioner was elected as an office bearer of the union and later he was elected as treasurer. The General Secretary Mr.M.S.Rawthur expired in the year 2015 and the petitioner was elected as General Secretary of the Union. Thereafter he was interacting with the 1[st] respondent as office bearer of the union representing the issues of the employees. Apparently, from the facts of the case, it is clear that he ceased to be a workman on being appointed as Senior Superintendent effective from 6/12/2010. Once he ceases to be a workman, he cannot be an ordinary member in terms of S.6(e) of the Trade Unions Act. WA No.65/2018 ## -:27:- However, he could continue as honorary or temporary member who becomes office bearers as provided u/s 22 in order to form executive of the trade union. There is no pleading to the effect that the petitioner, after him ceasing to be a workman, was admitted as a honorary or temporary member to become an office bearer. It is trite law and as held in _**State Bank of India Staff Association**_ (supra) that there is restriction of membership in a trade union and representatives of workman u/s 3 of the I.D.Act shall be chosen only from among the workmen engaged in the establishment and in consultation with the trade union. Therefore, for the purpose of S.3, petitioner cannot represent the workmen. Further, there is no clarity as to whether the petitioner continues as an ordinary member or had been re-inducted as a honorary or temporary member. Therefore, as of now, in the absence of any pleading, it has to be construed that the petitioner continues as an ordinary member which is not permissible for the registration of a trade union in terms of S.6(e) of the Trade Unions Act. The bye-laws of the trade union had not been placed before us for a clear understanding of the nature of membership. 27. In _**Bokajan Cement Corporation Employees' Union**_ WA No.65/2018 ## -:28:- (supra), the Apex Court observed that clause (e) of Section 6 of Trade Unions Act only provides for admission of membership and in view of the provisions in the constitution of the trade union and in the absence of any provision providing for automatic cessation of membership as a result of cessation of employment, it cannot be held that an employee would cease to be a member of the trade union, in such an eventuality. In so far as the bye-law or constitution of the trade union has not been placed before us, _**Bokajan Cement Corporation Employees' Union**_ (supra) cannot be made applicable to this case. 28. Therefore, in the light of what is stated above, we are of the view that Ext.P7 does not suffer from any infirmity warranting interference by this Court. There is no merit in the appeal and the same is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp