All India Railway Employees Confederation Through Its Secretary General v. The Chairman, Railway Board & Ors

order to provide proportionate representation to all Constituent units as many posts of Vice Presidents and Dy. Secy Genl may be created to that extent. III) COBS" & CWC members shall be elected from amongst the serving Railway Employees subject to the condition that retired Railway Employees may be elected only to the posts of working President and Vice Presidents in term of T.U. Act only.

IV) Inclusion of retired Railway Employees in any body of confederation shall be subject to the provision of section 22 of T.U. Act. V) The COBS" and CWC Members should not be the office bearers and members of any other organisations. (i.e. other than units of AIREC)

i) Set up of AIREC at Zone, Division & Branch level. To manage the functioning of AIREC properly at all levels the body of Confederation shall be formed at Zonal, Divl. and Branch Level. I) At Zone level it shall be named AIREC (N/Zone, SE/Zone, SR/Zone, W/-Zone, C/Zone, E/Zone, SC/Zone (and the like) II) Production units shall be considered as Zones. III) Zonal Bodies shall constitute of members of each constituent unit. Members enrolled by each unit shall be deemed to be the members of AIREC. IV) Number of Zonal Office Bearers shall be same as for COBS". But they will be prefixed by "Zonal" and "Genl." Shall be omitted. V) Zonal Genl. Body shall constitute:-

(A) All Zonal working Committee Members

(B) One delegate for every 75 members

(C) Divl. President and Divl. Secy of the Confederation as well as constituent units of AIREC

(D) Branch President and Branch Secy of AIREC.

(E) Zonal working Committee shall constitute as all Zonal office bearers, Divl. President, Divl. Secretary AIREC of all Divisions and two elected members at Zonal level of each unit of AIREC.

J) Formation of Divisional / Branch Bodies of AIREC. I) Each Division shall have a branch, workshops, sheds, and store, where strength is above 500 may also form as AIREC Branch. II) Posts shall be the same as for Zones but they shall be prefixed by Branch or Divisional. III) Divl. General body shall Constitute-

A) All Divisional working Committee members. B) One delegate for every 50 members Subject to minimum three of the Constituent. C) Branch President and Branch Secretaries of the Confederation. IV) Divisional Working Committee: It shall be

(I) Divl. Office bearers of AIREC (on the pattern of COB)

(II) Two members from each unit of AIREC

(III) Branch secretaries & Branch Presidents of AIREC. V) Branch Genl. Body:-

(A) All the branch executives Committee Members.

(B) One delegate for every 25 members subject to the minimum three of each unit.

(C) Branch office bearer of all units. VI) Branch executive committee shall constitute:-

(A) Branch office Bearers.

(B) Two Members of each constituent unit.

(C) Branch President and Branch Secy. Of each unit of AIREC. Article 8. Membership :

(i) The membership of the Confederation shall open to all serving Railway Men. However, Membership may be granted to the Retired employees subject to the provision of T.U. Act 1926 for the purpose of electing office bearers post of AIREC. Article 9. Terms of Affiliation: The Units seeking affiliation shall comply with the followings:- I) It must possess the qualification laid down in Clause 4(a) of the Constitution of Confederation. II) It shall not be parallel to any existing unit of the Confederation. Besides this no overlapping or dual Membership shall be permissible. The CWC shall be competent to decide the sphere and organisational scope of each unit. III) Subject to the provision of clause 10 of the Constitution the Unit shall agrees to pay any

special levy as may be fixed time to time by the Confederation. IV) It shall agree to expose its membership for Scruting if and when deemed necessary by the Confederation. V) It shall abide by the provisions of the Constitution of the Confederation and gives such undertaking in writing. It also agrees to abide by mandates and decisions taken by the confederation from time to time. VI) All applications seeking affiliation to the confederation shall be placed in CWC/AIREC meeting. It will see that granting affiliation does in no way harm to existing constituents units. CWCs"s decision for affiliation for or against shall be final. VII) It shall also give undertaking that without having consultation and taking into confidence of CWC AIREC, affiliated units at any level (i.e. Central / Zonal / Divisional) will resort direct action. VIII) Affiliation shall not be granted to any such organisation which is maintaining affiliation with other organisation. It should be applicable at all levels. IX) For Affiliation to the Central body of the Confederation the units shall function at the All India level and industrial unions at Zonal level. "Article-30. (a) DISAFFILIATION: The affiliates of the Confederation shall loose its" / their affiliation provided that:

(i) Dues are not paid to the Confederation within the stipulated time:

(ii) Other Constitutional obligations are not fulfilled. The disaffiliated unit shall have the, opportunity in respect of getting affiliation restored on payment of all arrears due within further three months, assigning satisfactory reasons for the default. The disaffiliated unit shall also have the right to appeal before the National Council or the General body as the case may be and the decision of the appeal shall be final.

(b) DISCIPLINARY ACTION:

(i) The office-bearer or working committee

member of AIREC including in indiscipline or working against the interest / aims /objects of organisation will be issued show cause notice and may be suspended from the Membership of the Committee by 2/3rd majority decision of the respective committee or higher committee.

(ii) The member so suspended / expelled has a right to appeal to the respective general body whose decision will be final."

¶22I am however still unable to see as to how an All India level Trade Union, required to redress the issues in the interest of All India workmen, can redress issues of one particular Zone and which issues may either not concern any other Zone or may be in conflict with the interest of group "C" and group "D" employees of another Zone. Rather, it is found that the constitution of the petitioner also is as a Federation of different Unions. However the petitioner, instead of having separate unions for different Zones who may form a federation, has provided for a federal structure within itself. The petitioner, in my view, would not satisfy the requirement of paragraph 2512 of Part B of Chapter XXV of the Manual of the Union to consist of distinct class of Railway servants. The Railway servants of All India, even if of the same class i.e. group "C" and group "D", cannot be considered as a distinct class vis-à-vis the disputes at Zonal level.

¶23Moreover, paragraph 2615 in Section II of Chapter XXVI of the Manual also, as aforesaid, envisages negotiations at the Zonal level by recognised Union and at the Railway Board or Tribunal level by Federation of such Unions. The only inference can be that the Manual envisages recognition of Unions at local level and with a Federation of such Unions at the All India level. An All India Union cannot satisfy the requirement of the

local level.

¶24Paragraph 2616 in Section II of Chapter XXVI of the Manual leaves the choice of particular branches of the recognised Union which should meet the District or Divisional Officer to the agreement between the General Manager and the Trade Union. Similarly, the detailed procedure of arranging meetings is also left to such agreement. Paragraph 2616(iv) also prescribes that at the District or Divisional level, subjects of negotiations will be only those which are in the powers of District or Zonal Officers. The periodicity of the meetings at the District/Divisional level with the Zonal Trade Union and at the Railway Board level with the Federation is also different.

¶25It thus cannot be said that Paragraph 2(a) of the Modalities prescribing the condition of "which exclusively represents interest of all Group C & D employees of the concerned Zonal Railway" for a trade Union for eligibility to contest election for recognition or interpretation of the respondent Railways thereof as excluding a Federation, is contrary to the Manual.

¶26The Division Bench of this Court in Delhi Electricity Workers Union Vs. NCT of Delhi 2012 SCC Online Del 3590 dealing with a contention that in law and in principle there can be recognition of majority Trade Union across an industry rather than only in respect of a constituent Unit of such industry and that the essence of a Trade Union is collective bargaining and greater the collective, greater the bargaining power and hence the question "whether collective bargaining should be establishment wise or industry based" (a) cited with approval the recommendations of the National Commission of labour, 1967 that (i) practice of recognising Union at

industry / area level should be encouraged; (ii) there should be proper demarcation of rights and functions of the industry / area recognised Unions and plant-wise Unions and on the basis of well defined conditions; (b) cited with approval the Code of Discipline prescribing that if a Union of workers in a particular establishment has a membership of 50% or more of the workers of that establishment, it should have the right to deal with matters of purely local interest—all other workers who are not members of that Union might operate through the representative of that Union for the industry; (c) held that in a given case what is feasible, whether industry wise recognition or establishment wise recognition, can be gone into by the Industrial Tribunal by means of adjudication; the Industrial Disputes Act, 1947 contemplates such mechanism to sort out such issues; (d) held that the ability and keenness of any Union to effectively represent the employees on a particular issue has to be seen in the light of the particular facts of a case and the class of employees who would be effected by such negotiation and the question, recognition of Trade Union can be at what level needs adjudication for which the appropriate forum would be Industrial Tribunal;

(e) held that there is no statutory provision which gives right to a Union to seek such recognition and such a right can be claimed only by raising industrial dispute.

¶27I must mention that Supreme Court, vide order dated 4th January, 2016, in SLP(C) No.13498-13501/2013 has granted leave to appeal against judgment aforesaid and which appeal is learnt to be still pending. There is no stay of the judgment aforesaid of the Division Bench.

¶28The same Division Bench of this Court, in Union of India Vs. Rail Coach Factory Men's Union ILR (2012) III Del 84, also held that though right to form a Trade Union may be a fundamental right under Article 19(1)(c) of the Constitution of India, imposition of conditions for recognition would not per se be viewed as an unreasonable restriction within the meaning of Article 19(4)—it is the prerogative of the employer to set down the conditions for recognition. Though the question as has arisen herein did not arise in that case but a reading thereof shows existence of Zonal Unions in Railways and rules of recognition thereof. SLP(CC) No.23523/2012 preferred thereagainst is found to have been dismissed on 22nd January, 2013.

¶29In C.N.S. Officer's Guild (Regd.) Vs. Chairman, Airport Authority of India MANU/DE/4333/2015 I had occasion to deal with the associations as distinct from Trade Unions of Airport Authority of India (AAI) and therefrom AAI also appears to have department wise associations and recognition.

¶30The action of respondent Railways impugned in these petitions, of not allowing the petitioner, an All India level Trade Union, to seek recognition at Zonal level is thus not found to be contrary to the Manual or otherwise bad in law. As aforesaid, recognition is not a right of the petitioner as a Trade Union and the respondent Railways as employer, if of the view that the negotiations should be at different levels with different Unions and so lays down procedure for recognition thereof, is entitled to do so. It is perhaps for this reason only that the counsel for the petitioner challenged the Modalities only on the ground of being contrary to the

Manual. However it is not found so. Moreover, even if there be any ambiguity in the language of the Manual, once the respondent Railways is found to be entitled to impose such conditions, its interpretation of the said language will prevail and the petitioner, without having any right of recognition, cannot interpret the language of Modalities differently. The petitioner, as an All India Trade Union, if satisfies other conditions of eligibility, can only seek recognition as a Federation.

¶31The petitions thus fail and are dismissed.

No costs.

RAJIV SAHAI ENDLAW, J. MARCH 10, 2017 "bs"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th March, 2017 + W.P.(C) No.8212/2007 ALL INDIA RAILWAY EMPLOYEES CONFEDERATION ..... Petitioner Through: Dr. Pradeep Asthana & Mr. T.D. Singh, Advs. Versus THE CHAIRMAN, RAILWAY BOARD & ORS ..... Respondents Through: Mr. R.V. Sinha & Mr. R.N. Singh, Advs. for R-1&2. AND + W.P.(C) No.2203/2013 ALL INDIA RAILWAY EMPLOYEES CONFEDERATION ..... Petitioner Through: Dr. Pradeep Asthana & Mr. T.D. Singh, Advs. Versus THE CHAIRMAN, RAILWAY BOARD ..... Respondent Through: Mr. R.V. Sinha & Mr. R.N. Singh, Advs. for R-1&2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The questions for adjudication in both the petitions (as confined to during the hearing on 17th February, 2016 and as recorded in order of that day) are (I) whether Clause 2(a) of the "Modalities for conducting secret ballot for the purpose of granting recognition to registered Railway Trade Unions representing all categories of Group "C" and Group "D" Employees of Indian Railways" (hereinafter called as Modalities) formulated by the respondent Railways are contrary to Chapter XXV and Chapter XXVI of the Indian Railway Establishment Manual (Manual); and, (II) whether the rejection dated 31st October, 2007 of the respondent Railways of the nomination submitted by the petitioner for the election for recognition of a Trade Union at the Zonal level, on the ground of the same being violative of Clause 2(a) supra, is bad. 2. W.P.(C) No.8212/2007 was filed when the Modalities were formulated and W.P.(C) No.2203/2013 was filed aggrieved from the rejection of nomination. The petitions have however been argued as one only. 3. Chapter XXV titled "Rules for the Recognition of Service Associations of Railway Servants" in Part A thereof provides for "Rules for the recognition of Service Associations of gazetted railway servants" and in Part B thereof provides for "Rules for the recognition of associations of non- gazetted railway servants". We are in these petitions concerned with the Associations of non-gazetted railway servants. 4. Paragraph 2512 in Part B of Chapter XXV of the Manual inter alia provides that recognition will not ordinarily be granted or continued to any association unless it (a) consists of a distinct class of Railway servants; (b) makes eligible for membership all railway servants of same class; and, (c) it is registered under the Indian Trade Unions Act, 1926. 5. Chapter XXVI titled "Staff Councils and Negotiating Machinery" of the Manual in Section I thereof titled "Staff Councils" deals with objectives of creating Staff Councils, Powers of Staff Councils, Composition of Staff Councils etc. Section II titled "Negotiating machinery for dealing with disputes between Railway Labour and Railway Administrations", in paragraphs 2615 and 2616 thereof provides as under: "2615. The machinery is to work in three tiers, viz.— (i) the Railway level—In this the recognised union will have access to District or Divisional Officers and subsequently to officers at the Headquarters including the General Manager. (ii) the Railway Board level—In cases where matters are not settled at Railway level, they will be taken up by the Federations with the Railway Board. (iii) the Tribunal level—In cases in which agreement is not reached between the Federation and the Railway Board and the matters are of sufficient importance, reference will be made to an ad hoc Railway Tribunal composed of representatives of the Railway Administration and labour presided over by a neutral Chairman. 2616. The following detailed procedure is laid down for the working of the machinery referred to above:— (i) At the district or divisional level, the District or Divisional Officers should meet the branches of the recognised Unions which may be established in the districts or divisions at least once in two months and oftener if necessary. Each workshop will be considered as a district. The particular branches which should meet the District or Divisi