Sunday, August 14, 2011

17.2.95 Supreme court judgement on recognition

Appeal (civil)  2336 of 1985



DATE OF JUDGMENT: 17/02/1995




Writ Petition (C) No. 534 of 1985 and I A. No. 1.

1995 (1) SCR 96

The following Order of the Court was delivered :

Collective bargaining is the principal raison d'etre 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 unions, may not be acceptable to the majority and may
not result in industrial peace. In such a situation with whom the employers
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 appeals; 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.

In the appeal at hand, the Food Corporation of India (FCI) and the unions
representing the workmen have agreed to follow the "secret ballot system"
for assessing the representative character of the trade unions. We have,
however, been called upon to lay down as to how the method of secret ballot
should be tailored to yield the correct result Keeping in view the
importance of the said matter, an order was passed as early as on November
22, 1985 to issue notice and hear all the major all India trade union
organisations on this aspect. Pursuant to this notice some trade unions'
organisations have appeared; and we have heard the learned counsel
representing them, so also Shri Thakur, learned senior counsel appearing
for the appellant.

Shri Khera appearing for one of the trade unions has brought to our notice
instruction No. 25 of 1980 dated 18.12.80 issued by the Office of the Chief
Labour Commissioner, Ministry of Labour, Government of India. This
communication styled as 'Memorandum' has stated that on receipt of request
either from the management or union for recognition of the union for the
purpose at hand, its eligibility for recognition is first required to be
examined, as stated in paragraph 3 in which mention has been made about
collection of some preliminary data. After this has been done, the exercise
of determination of the strength of all eligible unions is undertaken. This
is decided through secret ballot. The Memorandum has laid down a detailed
procedure in this regard. We have also on record a scheme which has been
prepared by the appellant for assessment of representative character of the
trade unions through secret ballot system. This scheme is annexed to IA No.
1 of 1994.

We have perused the aforesaid documents. We direct that the following norms
and procedure shall be following 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/works (category 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
proforma prescribed by the CLC. The said list shall constitute the voters

(v) The FCI shall display the voters list on the notice boards and other
conspicuous places and shall also supply copies thereof the each of the
union 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 board and also at other
conspicuous places for the information of all the workers;

(b)  print requisite number of ballot papers in the proforma 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 proforma prescribed by the
CLC in Hindi/English and the concerned regional language;

(d) set up requisite number of polling stations and booths near the
premises where the workers normally work; and

(e) provide ballot boxes with requisite stationery, boards, sealing wax

(vii) The Returning officer shall nominate Presiding Officer for each of
the polling station/booth with requisite number of polling assistants to
conduct the election in an impartial manner. The Presiding Officers and the
polling assistants may be selected by the Returning Officer from amongst
the officers of the FCI.

(viii) The election schedule indicating the dates for filing of
nominations, scrutiny of nominations papers, withdrawal of nominations,
polling, counting of votes and the declaration of results, shall be
prepared and notified by the Returning Officer in consultation with the
FCI. The election schedule shall be notified by the Returning Officer well
in advance and at least one month's time shall be allowed to the contesting
unions for canvassing before the date of tiling 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 dose of the polling, the Presiding Officer shall furnish
detailed ballot paper account in the proforma prescribed by the CLC
indicating total ballot papers received, ballot papers used, unused ballot
papers available etc. to the Returning Officer.

(xiv) After the close of the polling, the ballot boxes will be opened and
counted by the Returning Officer or his representative in the presence of
the representative of each of the unions. All votes which are marked more
than once, spoiled, cancelled or damaged etc. will not be taken into
account as valid votes but a separate account will be kept thereof.

(xv) The contesting unions through their representatives present at the
counting place may be allowed to file applications for re- counting of
votes to the Returning Officer. The request would be considered by the
Returning Officer and in a give case if he is satisfied that there is
reason to do so he may permit recounting. However, no application for
recounting shall be entertained after the results of the votes are

(xvi) The result of voting shall the compiled on the basis of valid votes
polled in favour of each union in the proforma 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 dispose 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.

It would be open to the CLC to deal with any situation not covered by the
procedure detailed above. He may do so in consultation with the returning
officer and the FCI.

We direct the CLC and the FCI to hold the elections in accordance with the
procedure prescribed by this order. This may be done before April 30, 1995.
The appeal and the writ petition are disposed of in the above terms. No