Kudankulam Nuclear Power Employees Union vs The Government of India and Others

K. Venkataraman, J.—By consent, the writ petition itself is taken up for final disposal.

The present writ petition has been filed for issuance of a writ of certiorarified mandamus calling for the records from the 5th respondent relating

to his order dated 27.1.2005 and quash the same and consequently direct the competent certifying officer to hold fresh certification proceedings.

The short facts of the matter as narrated in the affidavit filed by the petitioner is that the petitioner-Trade Union was registered under the Trade

Unions Act, 1926. The Nuclear Power Stations and the projects all over India are under the control of the second respondent-Nuclear Power

Corporation of India Ltd. (hereinafter called as ""NPCIL""), a company u/s 617 of the Companies Act. It is fully owned, controlled and

administered by the Government of India, the first respondent herein. The nuclear power project was commenced by the second respondent

NPCIL at Kudankulam in Tirunelveli District during March 2002. The third respondent is the said project. There are about 550 employees

employed by the third respondent. About 250 of them belong to workmen cadre and the others belong to supervisory, executives and

administrative cadres. The third respondent is a factory within the meaning of Section 2(m) of the Factories Act and thus an establishment u/s 2(e)

of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter called ""the Act""). The third respondent submitted a draft standing orders

containing 63 clauses u/s 3 of the Act to the 5th respondent for certification of the same. When the 3rd respondent submitted the draft standing

orders before the 5th respondent for certification of the same, there was no trade union of the 3rd respondent in existence. As per Rule 6 of the

Industrial Employment (Standing Orders) (Central) Rules, the 5th respondent has to call for a meeting of all the workmen to elect three

representatives to whom a copy of the draft standing orders together with a notice in Form-II issued u/s 5 of the Act should be forwarded. The 5th

respondent failed to discharge the above said statutory duties. Instead, his subordinate, namely, the Labour Enforcement Officer, selected 10

workmen in consultation with the 3rd respondent management to participate in the certification proceeding before the 5th respondent. This is

contrary to the said Rule 6.

It has been further alleged in the affidavit that the 3rd respondent by an order dated 14.10.2004 deputed 10 workmen nominated by them to

participate in the certification proceedings before the 5th respondent on 15.10.2004 at Madurai. The workmen collectively decided to depute two

of the workmen to participate in the proceedings. In fact, the meeting of workmen took the said decision urgently on the same day on seeing the

said notice dated 14.10.2004 with the available workmen.

The further case of petitioner is that the aforesaid 10 nominated workmen and 2 workmen representatives participated in the certification

proceedings on 15.10.2004 before the 5th respondent. It was represented by the two representatives that the draft standing order was not

furnished to them for giving their remarks/objections on the draft standing orders. Further, the 10 nominated workmen were not furnished with the

draft standing orders. The general body meeting of workmen were called on 19.10.2004 and it has been decided in the general body to have a

trade union of workmen, since the 3rd and 5th respondents were trying to have a certified standing orders without the participation of the elected

representatives of the workmen. Hence, the petitioner-union was formed and registered under the Trade Union Act, 1926. Later the 3rd

respondent was intimated about the registration of the union. On 9.11.2004, the petitioner union sent a letter to the 5th respondent enclosing

comments for 10 clauses out of 63 clauses in the draft standing orders and requested the 5th respondent to grant at least three months time to offer

comments on the remaining clauses. Further the petitioner requested the Tamil and Hindi translations of the draft standing orders for effective

participation of the workmen in the certification proceedings.

The further case of the petitioner is that the 5th respondent sent a letter dated 8.12.2004 directing the petitioner to appear before him at

Tuticorin for certification proceedings. Four of the office bearers of the petitioner-union appeared on 17.12.2004 and requested the 5th

respondent to adjourn the matter and give sufficient opportunity to furnish the comments to the remaining clauses. But the 5th respondent abruptly

closed the certification proceedings on 17.12.2004 and directed the petitioner to submit their comments on the remaining clauses in the draft

standing orders within three months and it has been informed by the 5th respondent that after receiving the said comments, he will consider the

same before certification. Thus, according to the petitioner, the 5th respondent, without waiting for the comments from the petitioner, issued the

impugned order dated 27.1.2005 certifying the standing orders. According to the petitioner, the 5th respondent simply certified the draft standing

orders as submitted by the 3rd respondent even without changing the full stop and comma.

The further case of the petitioner is that they preferred an appeal on 8.2.2005 to the 4th respondent as well as to the Deputy Chief Labour

Commissioner (Central), Bangalore and the Joint Chief Labour Commissioner, Mumbai. They also wrote a letter dated 21.2.2005 to the

authorities mentioned above and also enclosed comments for all the clauses in the draft standing orders to the Deputy Chief Labour Commissioner.

The Deputy Chief Labour Commissioner, Bangalore in his letter dated 1.1.2005 stated that the 4th respondent is the appellate authority.

Thereafter, the petitioner sent a letter dated 7.3.2005 to the 4th respondent stating the above facts and enclosing the comments on all clauses in the

draft standing orders. The petitioner also wrote letters dated 21.3.2005, 5.4.2005, 9.5.2005 and 8.6.2005 to the 4th respondent.

The further case of the petitioner is that though an appeal has been filed u/s 6 of the Act, it is not an effective one since the appellate authority

cannot remand the matter to the 5th respondent for fresh consideration. The appellate authority either simply confirm the standing order as certified

by the certifying officer or to make modification or addition as he thinks necessary to render the standing orders certifiable. Since mere

modification or addition may not be effective adjudication in this case, as it requires fresh certification by deciding each clause after hearing the

parties, the present writ petition has been filed challenging the impugned order dated 27.1.2005.

Mr. Hari Paranthaman, learned Counsel counsel for the petitioner, has submitted that:

(a) The impugned order of the 5th respondent totally violated Rule 6 of the Industrial Employment (Standing Orders) Central Rules, since he did

not convene the meeting of workmen to elect representatives to participate in the certification proceedings.

(b) The action of the 5th respondent in holding the certification proceedings with the workmen nominated by the management is illegal and without

jurisdiction.

(c) The 5th respondent failed to discharge his statutory duty cast on him u/s 4 of the Act by adjudicating the fairness and reasonableness of the

draft standing orders. He simply affixed his seal to the draft standing orders without applying his mind over the same.

(d) The 5th respondent has passed the impugned order in utter violation of the principles of nature justice. The 5th respondent has passed the

impugned order without affording opportunity to the petitioner and thereby violated the principles of natural justice.

Per contra, Mr. Sanjay Mohan, learned Counsel appearing for the second respondent, has contended that against the impugned order of the

5th respondent, the petitioner can file an appeal u/s 6 of the Act. The learned Counsel has further stated that since already an appeal has been filed

by the petitioner and the same has been withdrawn by the petitioner after filing of the present writ petition, the present writ petition is not

maintainable. Further, the learned Counsel has contended that though the petitioner has withdrawn the appeal after admission of the writ petition on

16.11.2005, even now he can file an application to restore the appeal. The learned Counsel has submitted that the second respondent will not raise

any objection for restoring the appeal, provided the writ petition is withdrawn. The learned Counsel has further submitted that since there was no

union at the initiation of the certificate proceedings, the management itself has nominated 10 workmen to participate in the certification proceedings.

If the trade union was in existence at that point of time, definitely the 5th respondent would have called a meeting and the union would have elected

3 representatives to participate in the certification proceedings.

It is further argued that after the formation of the petitioner-union, it sent a letter to the 5th respondent enclosing their comments for 10 clauses

out of 63 clauses in the draft standing orders. Though the office bearers of the petitioner-union participated in the proceedings before the first

respondent on 17.12.2004, they have not submitted any comment for the other 53 clauses in the draft standing orders. The 5th respondent having

waited for the comments, has passed the impugned order dated 27.1.2005. Hence, according to the learned Counsel for the second respondent,

the impugned order has been passed by the 5th respondent after affording reasonable opportunity to the petitioner.

Mr. P. Subbaraj, learned Counsel appearing for the respondents 1 and 4 to 6, has submitted that sufficient opportunity has been given to the

petitioner before passing the impugned order dated 27.1.2005. He has further submitted that since there was no union operating in the

establishment, the Labour Enforcement officer (Central), Tuticorin was directed to nominate duly elected five representatives from the

establishment. Hence, the Labour Enforcement Officer (Central), Tuticorin also nominated 4 persons who are office bearers of Kudankulam

Nuclear Power Employees Union. He has further submitted that the hearing was held on 15.12.2004 and after having deliberations of each and

every clause in detail and after explaining to the representatives of the workmen about the same, the impugned order has been passed. According

to the learned Counsel, the representatives of the workmen during the hearing submitted that they have gone through the draft orders and they have

no objection whatsoever.

Before dealing with the arguments advanced on the side of the petitioner as well as the respondents, it is necessary to extract hereunder the

order of this Court dated 16.11.2005 when the above writ petition came up for admission:

The petitioner is Kudankulam Nuclear Power Employees Union rep. by its General Secretary. The issue involved in this writ petition relates to the

Certification of Standing orders in respect of . Kudankulam Nuclear Power Project, a unit of Nuclear Power corporation of India limited,

Kudankulam. the petitioner has questioned the impugned Certification on the ground that the members of the Union have not been given sufficient

opportunity to submit their objections to the Draft Standing orders in spite of such request.

Learned Counsel for the petitioner would submit that in the absence of such opportunity, the members of the petitioner-Union are deprived of

their legitimate right to put forth their objections and in the said circumstances, this Court, by exercise of jurisdiction under Article 226, can

entertain the writ petition.

Though this Court was reluctant to entertain the writ petition on the ground that the petitioner had already resorted to the remedy of filing an

appeal on 8.2.2005 u/s 6 of the Act, coupled with the fact that the petitioner had also filed W.P.(MD) No. 9979 of 2005 seeking for a direction to

dispose of the said appeal, considering the submission made by the learned Counsel for the petitioner that in view of the above facts, the petitioner

is even prepared to withdraw the said writ petition including the appeal preferred before the appellate forum, and that the prayer in this writ petition

is restricted only for remanding the matter to the authority for giving an opportunity to the members of the petitioner-Union to make their

objections, I am inclined to entertain the writ petition. Hence, Admit. Issue Rule Nisi. Call for records in 8 weeks.

The learned Counsel appearing for the petitioner, pointing out the said order dated 16.11.2005, has vehemently contended that even though

there is an appeal remedy available under the Act and the same having been filed before filing of the writ petition, the same was withdrawn in view

of the undertaking given before this Court when the matter came up for admission. Now since the appeal has been withdrawn, the petitioner has no

other go except to canvass the correctness of the impugned order of the 5th respondent in this writ petition. Per contra, the learned Counsel for the

2nd respondent contended that even now the petitioner can file an application to restore the appeal and definitely it will not be opposed by the 2nd

respondent. But the learned Counsel for the petitioner submitted that in the appeal u/s 6 of the Act, the appellate authority can only confirm, modify

or add thereto the standing orders certified. Hence, that is the reason, the writ petition has been filed challenging the order of the 5th respondent

and an undertaking has been given before this Court for withdrawing the appeal filed by the petitioner u/s 6 of the Act, at the admission stage of the

writ petition. Further, the petitioner-Union has restricted its prayer for remand of the matter to the authority competent under the Act. Further, the

second respondent may not oppose the application if filed by the petitioner to restore the appeal. But, it is not known whether the other

respondents will oppose such application or not. Even though the learned Counsel for the second respondent has fairly conceded that if such

application is filed to restore the appeal, definitely it will not be opposed by the second respondent, the same concession has not been expressed at

the instance of the other respondents. In view of the foregoing reasons and in view of the specific orders of this Court dated 16.10.2005 at the

admission stage of the present writ petition, I am not inclined to direct the petitioner-Union to file an application for restoration of the appeal filed

u/s 6 of the Act.

Now since the appeal remedy is not available to the petitioner in view of the foregoing reasons, it is but natural the impugned order has to be

canvassed in the present writ petition.

It is to be noted that the 5th respondent has passed the impugned order mechanically without even attempting to adjudicate the fairness and

reasonable of the draft standing orders. Further, it seems that he simply affixed his seal of approval to the draft standing orders. Further, it is the

grievance of the petitioner that without affording sufficient opportunity, the impugned order has been passed.

Hence, I feel that it is a fit case where the matter has to be adjudicated by the 5th respondent afresh after affording an opportunity to the

petitioner-Union which has been formed now and pass order expeditiously. The impugned order of the 5th respondent dated 27.1.2005 is hereby

set aside and the Writ Petition stands allowed. It is open to the 5th respondent to pass appropriate orders after affording an opportunity to the

petitioner-Union and other necessary parties. Consequently, WP.M.P.10925 of 2005 is closed. In the circumstances of the case, there is no order

as to costs.