Trade Unions Act, 1926 – Section 13 – Registered Trade Union – Rights under the Trade Unions Act, 1926 cannot be waived by an Association on behalf of its members.
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side
I.P. MUKERJI, J.
Judgement On: – 15th June, 2016
W.P. No. 10016 (W) of 2015
Indian Oil Officers’ Association & Anr.
Indian Oil Corporation Ltd & Ors.
For the petitioners :- Mr. Partha Sarathi Sengupta, Sr. Advocate Mr. Sagar Bandyopadhyay Mr. Soma Kar Ghosh Mr. Niladri Banaerjee…Advocates For the respondents. Mr. Anindya Kumar Mitra, Sr. Advocate Mr. Soumya Majumder Mr. Sarmistha Ghosh Mr. S. Bhattacharjee, Advocates
This is a writ by the Indian Oil Officers’ Association (the Association). It is a registered trade union, under
Section 13 of the Trade Unions Act, 1926.
This kind of a trade union is treated as a body corporate. It can sue. It can be sued. The petitioner no. 2 is their General Secretary. The members work in various offices, depots, establishments, divisions etc. of Indian Oil Corporation. The Association challenges a Memorandum of Understanding dated 24th April, 2009. It was purportedly entered into by six members of this Association with the Corporation. They challenge certain clauses in it i.e. clauses 4,11,13,16 and
18. The agreement as a whole is also challenged. These clauses are set out below:
“4. Association shall on its own resolve and make endeavour to settle all the issues by mutual negotiation with the Management and shall not be part of any other federation/or collective forum.
11. Officers in Grade ‘G’ and above shall not be members of the Association.
13. Association will not interfere in any manner in the rights of Management concerning employment, non-employment, terms of employment and conditions of service.
16. Any officer in the position of Head of Department. Location Head irrespective of the grade shall not participate in any form of agitation.
18. Any violation of this code, reported or observed, shall render the Association to lose its status of recognition.”
They say that the management of the Corporation had obtained this agreement by subterfuge. Three of the signatories on behalf of the Association were dismissed employees. Three were suspended officers. They could not represent the Association. They had not been expressly or impliedly authorised by the Association to sign the agreement. They had been allured by the Corporation to execute it on the promise of reinstatement. They were also promised fast track promotion and their desired posting. They got it after execution of the agreement.
The agreement is attacked on the ground of unconstitutionality, illegality, arbitrariness and mala fide. It is also alleged that this agreement was obtained by duress, coercion, undue influence and so on. The Association wants a declaration that the Memorandum is unconstitutional and void. In the alternative they pray that the above clauses are not binding on their members and should not be enforced.
On the other hand, the respondents have argued that this writ has been filed after a delay of six years. In these six years the legal right of the writ petitioners to approach a Civil Court had been extinguished by the law of limitation. On the ground of delay this writ application should be dismissed. It is also said that the agreement was signed by the authorised representatives of the Union. Dismissed or suspended employees of the Corporation remained members of the Association. In that capacity they had signed the agreement. It had been signed with the eyes of the signatories wide open. Now the Association cannot come forward and challenge this agreement. The subject matter of challenge in this writ is infringement of the right of freedom guaranteed by article 19 of our Constitution. The Association being a body corporate is not conferred the right under this Article, which are only available to citizens. The terms of the Memorandum of Association have been accepted by all members of the Association by acquiescence, it was submitted. DETAILS Now, the facts have to be gone into in some detail. The agreement covers 15,000 officers who are members of the Association. They elect their office bearers every three years. The members elect their unit level representatives. These unit level representatives elect 62 All India Central Executive Committee Members (AICEC). This election process spreads all across the country. These 62 members comprising the said committee elect a core group comprising of 10 members. Decisions are taken by the core group with the required quorum. This decision has to be accepted by the Central Executive Committee. All employees of the corporation from Grade-A to I except Board level executives who are appointed by the Government of India, constitute the Officers grade. All officers are eligible to become members of the Association. Article 4(v) (a) of the Constitution of the Association provides that membership will be automatically terminated if a member ceases to be an officer of the Corporation.
The Officer’s Associations of 14 Public Sector Oil Companies had formed an Association Oil Sector Officers’ Association (OSOA). All the members of this Association (OSOA) went on strike between 7th January, 2009 and 9th January, 2009. It appears from the records that in response to this strike the management of the Corporation dismissed the President of the IOOA Mr. S. Dakwala, their Vice President Mr. M.S. Sharma and the General Secretary Mr. Tanmay Chatterjee. Some other office bearers of the Association were suspended. The Association complains that clandestinely on 24th April, 2009 the management of the corporation held a meeting at the Hotel Taj Bengal Kolkata with inter alia M/s Dakwala, Sharma and Chatterjee and three other members. It was here that they were allured to sign the said agreement on 24th April, 2009, it is alleged. The delay in filing this writ application has been sought to be explained in this way. After the 2009 strike the IOOA became virtually non-functional. Only the members of AICEC were aware of the agreement. The other members were not aware of the same till April 2011 after the election to AICEC and its reconstitution. This awareness was allegedly caused by the communication dated 5th April, 2011 by the respondent corporation to AICEC. On 29th July, 2011 AICEC convened a meeting at Kolkata rejecting the memorandum. This was communicated to the respondent corporation. They disapproved of this agreement. By their letter dated 9th August, 2011 the Corporation reiterated that they would enforce the agreement. On 25th August, 2011 IOOA requested the Corporation to reconsider their decision. It appears that the Association and the Corporation entered into correspondence between 25th August, 2011 and 18th June, 2014. On 18th June, 2014 the corporation wrote to the Association that if they acted contrary to the memorandum they would be derecognised. On 19th June, 2014 a representation was made to the Chairman of the corporation by the Association. He rejected the representation of the petitioner on 30th June, 2014.
Hence, this writ.
Mr. Partha Sarathi Sengupta, learned senior advocate appearing for the petitioners tried to justify the delay in filing the writ application by citing several authorities. He referred to