FOXCON MANAGEMENT DIRECTED TO HOLD SECRET BALLOT ELECTION TO RECOGNISE TRADE UNION FOR BARGAINING

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.01.2011

CORAM:

THE HONOURABLE MR.JUSTICE VINOD K. SHARMA

W.P.No.24353/2010

Podhu Thozhilalar Sangam (CITU),
Regn. No.504/CPT,
No.296, Gandhi Road,
Kanchipuram 631 501. ... Petitioner

versus

1.State of Tamil Nadu,
rep. by its Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George,
Chennai 9.

2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District.

3.The Management of Foxconn (India) Pvt.Ltd.,
rep. by its Managing Director,
Nokia Telecom SEZ,
SIPCOT Industrial Part Phase III,
A-1 Chennai Bangalore Highway (NH-4)
Sriperumbudur 602 105.
Kanchipuram District.

4.Foxconn (India) Thozilalar
Munnetra Sangam,
No.49-A, East Raja Veethi,
Kanchipuram. ... Respondents

Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Mandamus directing respondents 1 and 2 to hold election by secret ballot from among workers in the third respondent management to decide which union commands the majority and to recognize that union as recognized union which secures majority votes and negotiate and settle workers grievances only with them.

For petitioner : Mr.N.G.R. Prasad,
for M/s.Row and Reddy

For Respondents 1 and 2 : Mr.P.Muthukumar, Govt. Advocate,
for respondents 1 and 2.

Mrs.Nalini Chidambaram, Sr. Counsel,
for Mr.N.K.K.Arun Natarajan,
for 3rd respondent

No appearance for 4th respondent

O R D E R
The writ petitioner, Podhu Thozhilalar Sangam, a Workers' Union, has approached this court for issuance of a writ, in the nature of mandamus, directing respondents 1 and 2 to hold elections by secret ballot from among the workers of Foxconn (P) Ltd., so as to enable the third respondent Management to recognize the union enjoying majority, for negotiations of industrial disputes.

2.The case pleaded in the affidavit filed by the petitioner is that the Management has employed 1850 permanent workers. In addition, there are 500 workers on probation, 1500 trainees and 4000 contract workers.

3.The petitioner Union claimed that its membership is 1200 and therefore, it represents the majority. The petitioner union had placed Charter of Demands for wages, Dearness Allowance etc. on 24.08.2010. The Management gave their consent to the Assistant Labour Commissioner, Sriperumpudur, showing their willingness to hold negotiations with the majority union after holding election by secret ballot. The letter addressed to Assistant Labour Commissioner by the Management reads as under:-
"August 24, 2010
To
Assistant Labour Commissioner,
Sriperumbadur,
Kanchipuram District.

Respected Sir,

Sub : Requesting your good office to facilitate to know the Majority
Union for negotiating the "Charter of Demand"

We have received a letter from Labour Progressive Front [LPF] which has been registered under Trade Union Act 1926. Based on their submission of their office bearers we have initiated our initial talks with LPF Union. Moreover, they too have given their "Charter of Demand" and subsequently we had initiated our first round of talks with the LPF on 18th August, 10.

While we are negotiating with the present Union (LPF) and last Sunday (22.08.2010) CITU had hoisted the flag stating that they had registered the Union. They have prepared their "Charter of Demand" and they are willing to submit to us.

In this context, we would like to inform you that the Management is willing to negotiate whoever has got more majority and we would like to talk to them. Kindly facilitate us to show their majority through proper election mode where by the Management can talk to appropriate forum which has got more majorities.

Your kind cooperation is solicited.
For Foxconn India Pvt. Ltd.
Sakayaraju
Manager HR

CC to
1.The Principal Secretary
Ministry of Labour and Employment, Government of Tamil Nadu.
2.Joint Commissioner of Labour, Chennai.
3.Deputy Commissioner of Labour, Chennai."

4.The case of the petitioner is that in spite of the willingness expressed by the Management to hold elections, by secret ballot respondents 1 and 2 have not taken any steps to hold election to find out as to which union represents the majority for the purpose of negotiations. The petitioner has also stated in the affidavit that the management was taking steps to arrive at settlement under Section 18(1) of the Industrial Disputes Act with the fourth respondent union, which is not acceptable to the petitioner.

5.In support of his contention that secret ballot system should be followed to determine the majority union for negotiating the settlement under the Industrial Disputes Act, the learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India [AIR 1995 SC 1344], wherein the Hon'ble Supreme Court was pleased to observe as under :-
"Collective bargaining is the principal raison djtre of the trade unions. However, to see that the trade union, which takes up the matter concerning service conditions of the workmen truly represents the workmen employed in the establishment, the trade union is first required to get itself registered under the provisions of Trade Unions Act, 1926. This gives a stamp of due formation of the trade union and assures the mind of the employer that the trade union is an authenticated body; the names and occupation of whose office-bearers also become known. But when in an establishment, be it an industry or an undertaking, there are more than one registered trade unions, the question as to with whom the employer should negotiate or enter into bargaining assumes importance, because if the trade union claiming this right be one which has as its members minority of the workmen/employees, the settlement, even if any arrived between the employers and such a union, may not be acceptable to the majority and may not result in industrial peace. In such a situation with whom the employer should bargain, or to put it differently who should be the sole bargaining agent, has been a matter of discussion and some dispute. The check off system which once prevailed in this domain has lost its appeal; and so, efforts are on to find out which other system can foot the bill. The method of secret ballot is being gradually accepted. All concerned would, however, like to see that this method is so adapted and adjusted that it reflects the correct position as regards membership of the different trade unions operating in one and the same industry, establishment or undertaking.

6.It is represented by the learned Senior counsel appearing for the Management that a settlement stands arrived at between the Management and the fourth respondent u/s 18(1) of the I.D. Act. The learned Senior counsel, therefore, contended that the writ petition no longer survives as no relief can be granted at this stage.

7.The learned counsel for the petitioner in order to controvert the contention of the learned Senior counsel for the Management that the writ petition does not survive, as settlement has already been arrived at between the Management and Union, placed reliance on the judgment of this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary] decided on 05.09.2003, wherein this Court was pleased to observe as under :-
"5. It is not in dispute that a settlement was arrived at between the management and the workers' union on 9-8-90 under Section 12(3) of the Industrial Disputes Act regarding union election facilitating election for secret ballot to elect workers representatives. It is also not disputed that as per the said 12 (3) settlement, election would be held once in 3 years under the supervision of the Labour Officer. It is also not disputed that this representative body alone would get recognition from the management and this body alone has right to negotiate with the management. It is brought to my notice that after the factory at Ranipet was taken over by the Greaves Limited from the Enfield India Limited with all its rights and liabilities, elections were held in the year 1994, 1997 and 1999 to elect the workers' representatives in accordance with 12(3) settlement dated 9-8-90. It is the definite case of the petitioner Union that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. It is the claim of the respondents 2 and 3 that there are four different unions in the Greaves Limited and in all occasions whenever there is a dispute or settlement, the management used to call all the 4 unions. During the course of hearing, learned counsel for the respondents has brought to my notice a letter dated 20-8-2003 issued by the Greaves Limited informing that it is the policy of the management involving all the 4 unions in the negotiation process. By pointing out the said letter, learned counsel for respondents 3 and 4 would contend that the Labour Officer, Vellore I/second respondent herein is fully justified in rejecting the request of the petitioner for conducting election for Unions. First of all, the letter of the management dated 20-8-2003 was issued recently, i.e., in any event, subsequent to the filing of the writ petition. In view of the fact that the management has not been impleaded as one of the respondents in the above writ petition, for the reasons best known to them, the management has not taken care to get themselves impleaded to put-forth their stand before this Court. Further, this letter was not addressed to the Labour Officer or to any one of the unions. In such a circumstance, I am not inclined to rely on the said letter brought before this Court at the time of argument. On the other hand, Mr. N.G.R. Prasad, learned counsel for the petitioner, has brought to my notice the relevant clauses in the 12(3) Settlement dated 09-08-90 which show election has to be held once in two years under the supervision of the Labour Officer. It is also clear that only the representative body would get recognition from the management and the said body alone has the right to negotiate with the management. It is also brought to my notice that the term of office for the workers representatives elected in the year 1999 came to an end in the year 2001 and thereafter no election has been held. In this regard, it is relevant to refer the request made by the management Greaves Limited in their letter dated 29-12-94 to the Labour Officer, Vellore I. In the letter, the management after referring to the existence of 3 unions namely Ranipet Greaves Employees Union, Greaves Workers Union and Greaves Mazdoor Sangam and after highlighting that because of various unions, they are not in a position to run the industry conducively, peacefully and without any disturbance, requested the Labour Officer to conduct election among the workers and select a representative body for the benefit of the workers as well as smooth functioning of the factory at Ranipet. The said letter finds a place at page 5 of the typed-set of papers filed by the petitioner. In the light of the stand of the management, in view of various clauses in the 12(3) settlement dated 9-8-90 regarding union election and of the fact that elections were held in the year 1994, 1997 and 1999 and no election has been held in 2001, I am of the view that the Labour Officer committed an error in rejecting the request of the petitioner instead of conducting election as per the terms and conditions of 12 (3) settlement dated 9-8-1990.
6. It has been held in a series of decisions by the Apex Court that Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute, that Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found and that technicalities should not come in the way of granting that relief under Article 226 of the Constitution of India. Further, to have industrial peace and harmony, the trade union has to exist by following democratic means and norms. One of the methods is to have Office Bearers duly elected under the bye-laws. In this case it is not disputed that 12 (3) settlement dated 9-8-90 enables election to the union once in two years under the supervision of the Labour Officer and, in fact, elections were held in the previous years namely 1994, 1997 and 1999 and no election has been held after 2001. I am unable to understand the attitude of the 2nd respondent in rejecting the request of the petitioner which is totally different. In similar circumstances, K.S.Bakthavatsalam J., in Writ Petition No. 6415 of 1991 dated 2-7-1992, directed the Labour Officer to conduct election for Office Bearers and Executive Committee Members of the workers union. Similar directions were also issued by K. Govindarajan, J., in Writ Petition No. 8721/1998 dated 04-02-1999 and K. Raviraja Pandian, J., in Writ Petition Nos. 2551 of 1999 etc., batch dated 12-02-2001. It is also relevant to refer a decision of the apex Court in F.C.I. Staff Union v. Food Corporation of India, reported in AIR 1995 SC 1344 wherein Their Lordships have held that in an industry or a concern more than one unions exist, it is but proper to conduct secret ballot and elect representatives to represent them before the Labour Officer or before the management as well as officers prescribed under the Act. In the said decision, the Supreme Court after prescribing norms and procedures, directed the Food Corporation of India to hold elections in accordance with the procedures mentioned by them.

8.The validity of the settlement entered into between the Management and the fourth respondent is not under challenge in the present writ petition. Therefore, this court is not expressing any opinion on legality of the settlement.

9.The learned counsel for the petitioner prayed that the respondents be directed to conduct election by secret ballot to ascertain the majority union.

10.On a consideration, I find force in the contention raised by the learned counsel for the petitioner. The Hon'ble Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, has observed that to have industrial peace and harmony, trade union has to exist by following democratic means and norms. In the present case, even the Management had given its consent for holding election by secret ballot, and it is the second respondent who has chosen not to proceed further with the matter, which resulted in the management entering into a settlement with the fourth respondent. The second respondent, thus, failed to perform the duty entrusted to him, and thus defeated the rightful claim of the petitioner.

11.The learned counsel for the petitioner is also right in contending that mere settlement cannot be a ground to deny holding of election by secret ballot to determine the majority union for the purposes of negotiation, as held by this Court in Writ Petition No.33200/2002 [Ranipet Greaves Employees Union, represented by its General Secretary and Greaves Labour Union, represented by its Secretary Vs. The Commissioner of Labour, Labour Officer-I, Greaves Employees Development union, represented by the General Secretary and Greaves Mazdoor Sangam, represented by its General Secretary].

12.The contention of the learned Senior counsel for the Management that the writ petition suffers from the vice of non-joinder of necessary parties, as Development Commissioner of the Special Economic Zone, who is the competent conciliation Officer, has not been made party, cannot be sustained as the Development Commissioner cannot be said to be necessary party because at best, he could be a proper party, and non joining of the Development Officer cannot be fatal to the case. The prayer made by the petitioner for holding of election by secret ballot is only to ascertain the majority union. It is also to be noticed that the Management has no objection for conducting election by secret ballot. For the reasons mentioned, this writ petition is allowed.

13.The second respondent is directed to hold election by secret ballot to determine the majority union for the purpose of maintaining industrial peace and help the management in selecting the union with whom negotiations can be held.


14.It is made clear, this shall not be taken to be an expression of opinion on the settlement already arrived at by the Management and the fourth respondent. The legality of settlement can be tested only by the aggrieved party before the appropriate forum, in accordance with law.

15.While holding election by secret ballot, the second respondent is directed to follow the principles of fair and free election, as laid down by the Supreme Court in Food Corpn. of India Staff Union v. Food Corpn. of India, AIR 1995 SC 1344, which is as under :-
"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 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the pro forma 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 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 boards 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 regional language concerned;
(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 nomination 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 months 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 on 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. 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 representatives 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 re-counting 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 re-counting. However, no application for re-counting 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 objection shall be heard by the CLC and disposed of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law."

16.The second respondent shall conduct election taking into consideration the above principles laid down by the Supreme Court, with necessary modifications, wherever necessary. The process of elections by secret ballot shall be commenced within six weeks from the date of receipt of a certified copy of this order.

17. There is no order as to costs in the writ petition. M.P.No.1/2010 is closed.









tar

To

1.Principal Secretary to Government,
Ministry of Labour and Employment,
Secretariat, Fort St.George, Chennai 9.

2.Assistant Labour Commissioner,
Sriperumbudur,
Kanchipuram District