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CASE NO.: Review Petition (civil)  1111-1112 of 2002 Appeal (civil)  3337-3338 of 2002

PETITIONER: Chairman, State Bank of India and another                        

RESPONDENT: Vs. All Orissa State Bank Officers Association and another           

DATE OF JUDGMENT: 31/07/2003

BENCH: K.G.BALAKRISHNAN & (B.N.SRIKRISHNA.

JUDGMENT:                  

J U D G M E N T

SRIKRISHNA,J.

       These review petitions have been filed by the State Bank of India  which is the unsuccessful Appellant in Civil Appeal Nos. 3337-3338 of  2002.

       The circumstances under  which the present review petitions arise,  briefly recounted,  are  as follows:- The Review Petitioner is a nationalised bank and Respondent No. 1,  All Orissa State Bank Officers Association (hereinafter referred to as  "Respondent association") is stated to be a registered unrecognised union  representing less than 9 percent of the officers in the Orissa Circle, having  membership of only 300 officers of the Petitioner bank in the Orissa circle as  against the total number of about 2900 officers. The association filed a  public interest litigation in the High Court of Orissa, Cuttack claiming parity  with the office bearers of another union known as the State Bank of India  Officers Association, which had been recognised by the management of the  Petitioner bank for the purpose of collective bargaining. The main grievance  put forth by the Respondent association in the said petition was that the  Petitioner bank had adopted a policy of hostile discrimination against them  and was showing undue favour to the other union which claims to represent  the majority of the officers.

By the judgment dated 24.11.98 the writ petition was allowed  directing inter-alia as under: -         "For the foregoing reasons we set aside  Paragraph 2 of the staff circular No. 91 of 1997 if  the same is still in force and direct the opposite  parties to confer such rights on the petitioner- Association as are available to them under Rule 24  of the Verification Rules.

The Management of the State Bank of India  are also directed to keep in mind the observations  made in this judgment while dealing with its  employees; officers and their Unions, recognised  or unrecognised."

Before the High Court, the Respondent association had relied on a set  of rules known as "The Rules For Verification Of Membership And  Recognition Of Trade Unions Rules, 1994". Particular reference was made  to Rule 24 thereof which confers some rights on unrecognised Unions. It is  not clear from the record as to under what provision of law the aforesaid

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rules have been prescribed. Counsel appearing for the Review Petitioner,  and the Respondent who appeared in person, were unable to throw light on  the statutory efficacy of the said rules. In any event, the High Court had  itself noticed in its judgment that the rules were not binding under any  provision of law, and this fact is not disputed at the bar. Despite holding that   these rules were not  binding, the High Court  held that the spirit and  principle behind Rule 24 was a salutary one and, therefore, the Petitioner  bank should permit the Respondent association, albeit that it was  unrecognised, to meet and discuss with the employer or a person appointed  by the employer the grievances of individual members relating to his service  conditions. On this reasoning, the High Court issued a Writ of Mandamus to  the Review Petitioner bank directing it to implement the principle, if not the  provisions, of Rule 24(a). This direction was challenged in Civil Appeal  Nos. 3337 - 3338 of 2002. These Civil Appeals were dismissed by a  judgment of this Court dated May 6, 2002. The judgment specifically  records the observation of the High Court that, although Rule 24 of the  Verification Rules itself does not apply, the principle behind the rule can be  extended to any normal, unrecognised Union, even if it is not a union of  workmen. It was also observed in the judgment that rules under the Indian  Trade Unions Act had been framed with a view to avoid arbitrariness, bias  and favouritism in the matter of recognition of trade unions, that procedure  prescribed therein was intended to ascertain which of the trade unions really  commands the support of the majority of the employees and that such a  procedure is intended to enable both the trade union and the employer to  carry on collective bargaining efficaciously so that industrial peace would be  maintained and the work of the establishment could be carried on normally.  The Bench took notice of the possibility of multiple trade unions coming  into existence in the industry and was of the view that, though such non- recognised unions may not have the right to participate in the process of  collective bargaining with the employer over issues concerning the workmen  in general, they had the right to meet and discuss with the employer or any  person appointed by him issues relating to individual grievances of  employees. Hence, it was observed in the judgment:- "It follows, therefore, that the  management/employer cannot outrightly refuse to  have discussions with a non-recognised union in  matters relating to service conditions of individual  members and the other matters incidental thereto."  

After noticing the judgment of this Court in the Balmer Lawrie  Workers’ Union, Bombay & Anr. v.  Balmer Lawrie & Co. Ltd. & Ors.  [(1985) 2 SCR 492] this Court went on to observe: "The judgment of the High Court disposing of the  writ petition and the order disposing of the review  petition filed on behalf of the management make  the position amply clear that the rights and  privileges vested in a non-recognised association  are limited to espousing the grievances of  individual members relating to their service  conditions and representing them in domestic or  departmental enquiries held by the employer and  not proceeding before the conciliation officer,  labour court, industial tribunal or arbitrator. The  High Court has not conceded any right to the non- recognised union to participate in discussions  relating to general issues concerning all workmen."

The review petitioner has urged two points in support. First, that even  the majority union does not have the right of negotiation or representation  with respect to individual grievances and denial of this right to a union,  which was admittedly a minority union, could hardly be said to be  discriminatory as the High Court seems to have assumed. On the contrary, it  is urged that conferring such a special right on the minority union would  amount to reverse discrimination. Secondly, it is contended that in Common  Law there is no obligation on an employer to confer upon a union the right

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to represent individual employees and unless such a provision is expressly  made by any statute or statutory rules, the employer is not obliged to grant  any such right. The High Court has found that the 1994 Verification Rules  do not apply. In any event, the State Bank as a public sector bank had  created its own efficacious grievance settlement machinery and there was no  justification for the High Court to import the principle, if any, from Rule 24  of inapplicable rules to override the grievance redressal machinery which  was already in place. The petitioner contends that these submissions have  been lost sight of in the judgment, which is sought to be reviewed. Hence,  the review petition.

A reference to the counter affidavit in the Civil Appeals filed by the  General Secretary of State Bank of India Officers Association brings home  the fact that, as a matter of long practice and usage, bipartite relations had  been maintained only with the majority/recognised associations, but issues  relating to individual grievances had to be processed through the grievance  redressal procedure as they were not discussed with the majority/recognised  associations. The said affidavit places on record the grievance procedure  with regard to redressal of individual grievances. A perusal of the said  grievance procedure (Annexure A2) clearly shows that there is a three-tier  system of dealing with individual grievances. First, an individual grievance  is to be made to an Initial Authority in respect of the department or section  or branch in which the official is working directly. If there is failure to  render satisfaction or give  decision within the prescribed time, an appeal  may be made to the Appellate Authority. If no decision is given by the  Appellate Authority, within the prescribed time frame, then the complaint  may be referred to a Grievance Committee consisting of two representatives  of the bank and two representatives of the supervising staff nominated by the  Supervising Staff Association. The decision of the majority of members of  the said committee shall prevail. This grievance procedure brings out the  fact that the privilege of discussing individual grievances of the officers has  not been given even to the trade unions representing the majority of the  officers.  In all proceedings under the grievance procedure, the officer  concerned may appear himself or in addition have his case represented by a  colleague.  It is of significance that no union representative as such is  allowed. The existing grievance procedure has been functioning smoothly for  the last several decades. The rejoinder affidavit filed by the Petitioner bank  also places on record several circulars by which the grievance procedure has  been brought into place. It also indicates the nature of grievances to be  addressed under the grievance procedure, the manner of disposal of  grievances, appeals and consideration of the grievance by the Grievance  Committee. The grievance procedure circulars clearly indicate that any  disciplinary action taken in accordance with the terms and conditions  governing the official service shall not constitute a grievance to be processed  under the said procedure. It is made clear that any action taken against  individuals for disciplinary purposes would not and could not form the  subject matter of an individual grievance to be ventilated under the  grievance procedure machinery. It is also made clear that the union  recognised by the employer, which represents more than 90 percent of the  officers employed in the concerned circle, had also not been conferred this  privilege of representing its members in grievance proceedings. As far as  representation in such proceedings is concerned, it is confined to a co- employee or co-officer, irrespective of the trade union affiliation of the  delinquent employee/officers.   For the Respondent association, however, it is contended that there is  no law under which the representative character of the majority association  has been determined. It is also contended that there is no statutory provision,  which could decide as to which of the contending trade unions really  represents the concerned employees. In these circumstances,  it is urged that  the judgment of the High Court took a reasonable view, namely, that the  non-recognised trade unions should also be accorded the right of  representing individuals and ventilating their grievances by holding  discussions with the employer which is precisely what has been accepted

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and reiterated in the judgment of this court dated May 6, 2002. It is,  therefore, contended that there is no scope whatsoever, much less any need,  to review the judgment. In our view, the contention urged by the Counsel for the Review  Petitioner has merit and needs acceptance. There is no Common Law right  of a trade union to represent its members, whether for purposes of collective  bargaining or individual grievances of members. This is an inroad made into  the Common Law by special statutes. Either the special statute operates  proprio vigore, or it does not. In the situation before us, it is undisputed that  Rule 24(a) on which the Respondent association and the High Court placed  reliance, has no application. This is accepted even in the judgment under  review. Nonetheless, on general principles of equity, justice and fair play the  judgment under review holds that the minority trade union should also be  afforded an opportunity of ventilating individual grievances of its members.   It appears to us that, in doing so, the attention of this Court was not adverted  to the elaborate grievance procedure machinery which is in existence and the  details of which are placed on record.

Having considered the matter in its entire perspective, we are inclined  to agree with the submissions, of the Review Petitioner. We do not think that  denying such a  right of representation to the minority union, when such a  right is not conceded even to the majority union, amounts to discrimination  requiring redressal at the hands of the High Court. It is also not possible for  the High Court to exercise its powers under article 226 to direct an employer  to bring into existence such a system of representation in grievance  procedure. In the absence of arbitrariness or discrimination, in our judgment,  there was no scope at all for interference in exercise of writ jurisdiction. It is   urged by Shri Salve for the Review Petitioner that the application of such a  principle in one zone might create serious repercussions all over, since the  bank has branches throughout the country. We also noticed that the  appropriate government in respect of the State Bank of India is the Central  Government and the rules made by the State Government cannot be enforced  against it. Considering all aspects of the matter, it appears to us that the  review petitions must be allowed, as these crucial issues were not considered  in the judgment under review.          In the result, we allow the review petitions and recall the judgment  dated May 6, 2002. Consequently, the judgment dated May 6, 2002 in Civil  Appeal Nos. 3337-3338/2002 is recalled. Civil Appeal Nos. 3337-3338 of  2002 are allowed  and the judgments of the High Court of Orissa, Cuttack  are set aside. The writ petitions from which the said judgments arose are   dismissed.

       No costs.