RIGHT TO FORM ASSOCIATIONS OR UNIONS : WHETHER AN ABSOLUTE OR UNFETTERED RIGHT : PART-I

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : THE SCOPE OF ARTICLE 19 (1) (c) OF THE CONSTITUTION OF INDIA RE-EXAMINED : AN APEX JUDICIAL DICTUM – PART : I

TRADE UNIONS’ RIGHTS

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),DHANBAD: 826003 

PRELUDE : On the 15th May 2011 issue of FLR an esteemed reader had posed a Question (Labour problems and solutions), Page 52. The question is as follows : 

(i)        We are carrying on marketing activities and have branches all over India whereas our head office is at Delhi where we have quite a large number of employees who have strong union also. As and when we have to transfer the employees, including those who are the office bearers of the union, they resist their transfer. My specific query is as to whether such employees, who are office bearers of the union, can be transferred from one place to another? 

(ii)       The union leaders insist that they want to hold their union meetings at the premises of the establishment. Are they entitled to hold such meetings? 

           The Journal (FLR), while answering the questions, has relied on the following case-laws : 

(i) (a)  Vijaya Bank Officers’ Congress (Regd) vrs. VijayaBank : 1993 (66) FLR 58 :          1993 LLR 229

   (b)  Singapore Airlines Ltdvrs. Mr. Quentin Rodrigues : 2008 (118) FLR 760 : 2009      LLR 900 

(ii)       Railway Board, Representing the Union of India, New Delhi vrs. Niranjan          Singh:1969 (18) FLR 300 

           Since in question (ii) , a Full Bench’s judgment of the Hon’ble Supreme Court has been referred to, I intend to discuss the said case-law. The esteemed readers would know as to what was the mindset of the Apex Judicial Forum on Trade Union’s right in the late sixties. This question pertains to Article 19 of the Constitution of India. Before analyzing the case-law it would be quite pertinent to know the pedagogy of Article 19 of the Constitution of India which reads as follows : 

ARTICLE 19. Protection of certain rights regarding freedom of speech, etc –  

(1)      All citizens shall have the right - 

(a)      to freedom of speech and expression; 

(b)      to assemble peaceably and without arms; 

(c)      to form associations or unions; 

(d)      to move freely throughout the territory of India;

(e)      to reside and settle in nay part of the territory of India; 

(f)       omitted in 1979 

(g)      to practice any profession, or to carry on any occupation, trade or business. 

(2)      Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court. 

(3)      Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. 

(4)      Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restriction on the exercise of the right conferred by the said sub-clause. 

(5)   Nothing in sub – clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of the general public or for the protection of the interests of any Scheduled Tribe. 

(6)      Nothing in sub – clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposes, reasonable restrictions on the exercise of the right conferred by the sub – clause, and in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the state from making any law relating to –  

           (i)        the professional or technical qualification necessary for practicing any                 profession or carrying on any occupation, trade or business, or  

           (ii)       the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. 

           Now, it is clear that formation of unions or associations have been guaranteed as fundamental rights of the citizens. In the year 1956 a case pertaining to Article 19 occurred concerning trade union rights. Let us look at the case : 

THE CASE-LAW:

RAILWAY BOARD vrs. NIRANJAN SINGH [AIR 1969 SC 966 : 1969 – II – LLJ – 743:1969 (18) FLR 300 : 1969 Lab I C 1368 : 36 FJR 34 : 1950-83 (4) SCLJ 34]

FACTS OF THE CASE:

        One, Shri Niranjan Singh was holding a permanent post in Northern Railway. He was a trade union’s member. On 7th November 1956 he was issued with a chargesheet wherein the following charges were levelled against him : 

(i)        That he was instrumental in compelling the air compressor being shut down at about    8.15 a.m. on 31st May 1956. 

(ii)       That he contravened the direction given by the General Manager, Northern Railway as per his letter no. 961/E/0/(Evi) dt. June 19, 1956 and July 27,1956.  

           On the said two charges he was called upon to show cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code, Vol 1 or punished with any lesser penalties specified in Rule 1702. On receipt of explanation from the delinquent an enquiry committee consisting of three officers was appointed to enquire into the charges. The said committee concluded that the first charge was not proved beyond all reasonable doubt but he was found guilty on the second charge. The disciplinary authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses mentioned in his order. Even after examining those witnesses the enquiry committee adhered to its earlier conclusions. After examining the report of the enquiry committee, the General Manager as per his order dated 25th May, 1957, accepted its findings on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the delinquent was guilty of that charge as well. On the basis of the conclusion reached by the General Manager, the delinquent was issued with showcause notice wherein his removal from the services was proposed. The delinquent submitted his explanation to the show cause notice which was not accepted by the General Manager. By an order dt. 20th August 1957 the delinquent was removed from the services. The delinquent, following his removal from services, challenged the action of the General Manager before the High Court of Punjab by filing a writ petition under Article 226 of the Constitution of India. The Single Judge of the high Court who heard the writ petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Manager’s direction as per his letter of June 19, 1956 is void as being violative of Article 19 (1) of the Constitution of India. Against the order of the Single Judge the employer filed an appeal before a learned Division Bench of the same High Court. The learned Division Bench upheld the conclusion of the learned Single Judge on the first charge but it was unable to accept his finding that order of the General Manager of June 19, 1956 was violative of Article 19 (1) of the Constitution. All the same the Division bench affirmed the decision of the learned single judge. The observations of the Division Bench is reproduced hereunder.  

“It is by now a generally recognized principle that where an order such as an order of detention or removal from service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ground found to be bad.” 

SLP BEFORE THE SUPREME COURT 

           The Railway Board, having felt aggrieved by the order of the High Court, filed a special leave petition before the Hon’ble Supreme Court which was heard in Civil Appeal No. 1206 of 1966. The following contentions were urged before the Hon’ble Supreme Court on behalf of the Appellant, Railway Board : 

(i)        That the finding of the General Manager on the first charge being a finding of fact. 

(ii)       That the finding of fact as per (a) above not having been held either not supported by any evidence or as perverse, it was not open to the High Court to review the evidence afresh and come to the conclusion of its own. 

(iii)      That the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been establishment, does not represent the current legal position as expounded by the Apex Court.

           On the contrary, the Counsel for the delinquent not only supported the conclusions of the Appellate Court, he also strongly commended that the supreme court should accept the findings of the learned Single Judge that the General Manager’s direction contained in his letter of June 19, 1956 was violative of Article 19 (1) (a) to (c) of the Constitution of India. 

THE QUESTIONS FOR DETERMINATION 

           On hearing the arguments and counter – arguments of the parties, the Hon’ble Supreme Court framed the following questions for determination : 

1.        WHETHER THE HIGH COURT WAS WITHIN ITS JURISDICTION IN THE EXERCISE  OF ITS POWERS UNDER ARTICLES 226 OF THE CONSTITUTION TO SET ASIDE THE CONCLUSION REACHED BY THE GENERAL MANAGER ON THE FIRST CHARGE ?

2.        WHETHER THE DIRECTION ISSUED BY THE GENERAL MANAGER ON JUNE 19, 1956 IS VIOLATIVE OF ARTICLE 19 (1) (a) TO (c) OF THE CONSTITUTION OF INDIA?  

3.        WHETHER THE APPELLATE COURT WAS RIGHT IN ITS VIEW THAT IF AN ORDER OF REMOVAL IS BASED ON NUMBER OF GROUNDS AND ONE OR MORE OF THESE GROUNDS ARE FOUND TO BE UNSUSTAINABLE, THE ORDER OF REMOVAL IS LIABLE TO BE STRUCK DOWN ? 

The First Charge against the Delinquent? 

           While having a look on the first charge against the delinquent, the Hon’ble Supreme Court noticed certain undisputed facts as follows : 

On 31st may 1956, the Union of which Shri Niranjan Singh was the Vice-President declared a token strike. The strike in question was declared by the delinquent and he took a leading part in it. During the time of the strike the compressor was not working. The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before the Supreme Court that the compressor driver must have started the compressor in the East Compressor House at 8.00 hours and there must have been certain circumstances which made the driver to shut it off at 8.15 hours. The only question for decision is whether the delinquent was responsible for shutting it off. Two witnesses namely Subrati; the compressor Driver and Rameshwar, his assistant emphatically stated before the enquiry committee that it was the delinquent who led a group of strikers and compelled them to close down the compressor. The enquiry committee felt that their evidence cannot be accepted at its face value as they were not able to name any other person in the group. The General Manager did not agree with the enquiry committee on that point. He fully accepted their evidence. It was open to the General Manager to do so. He was not bound by the conclusions reached by the enquiry committee (see Union of India vrs. HC Goel : 1964 (9) FLR 1610). This is not a case where it can be said that the findings of the Disciplinary Authority is not supported by any evidence nor it can be said that no reasonable person could have reached such a finding. Hence the conclusion reached by the Disciplinary Authority should prevail and the High Court in the exercise of its certiorari jurisdiction could not have interfered with its conclusion (see S Sayed Yakub vrs. K S Radhakrishnan and others : (1964) 5 SCR 64).  

           It was next contended that in arriving at his decision on the first charge the General Manager had relied on the hearsay evidence given by one Mr. De Mellow and hence his conclusion is vitiated. The evidence of the witnesses examined during the enquiry was not before the Supreme Court. Hence it was not possible on the part of the Hon’ble Apex Court to accept the contention that De Mellow’s evidence was hearsay. In this view, the Hon’ble Supreme Court expressed, it was not necessary to go into the question whether hearsay evidence can be relied on at all in an enquiry under Article 311 of the Constitution of India and if so within what limits. Some of the inferences drawn by the General Manager were objected to by the learned counsel for the delinquent. They appear to be inference of fact, evidently drawn from the material before him and as such cannot be properly objected to. It was open to him to draw those inferences. 

           For the reasons mentioned hereinbefore, the Hon’ble Supreme Court held that the High Court exceeded its powers in interfering with the finding of the General Manager on the first charge. 

Question No. 3 

           After taking up Question No. 1, the Hon’ble Supreme Court took up Question No. 3. While taking up the same it was observed as follows : 

It was not disputed that the first charge levelled against the delinquent was a serious one and it would have been appropriate for the General Manager to remove the delinquent from the service on the basis of his finding on that charge (italicized by me for emphasis). But the Supreme Court was told that it cannot assume that the General Manager would have inflicted that punishment solely on the basis of that charge and consequently the punishment imposed on the delinquent could not be sustained if it is held that one of the two charges on the basis of which it was imposed, is unsustainable. This contention could not be accepted in view of the decision of the Hon’ble Supreme Court in State of Orissa vrs. Bidyabhusan Mohapatra [(1962) Supp. 1 SCR 648] wherein it was held that if the order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanor for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. 

Question No. 2 : The Second Charge  

           While dealing with the Second charge, the Hon’ble Supreme Court referred to the circular issued by the General Manager on 19th June 1956. It would be quite pertinent to reproduce the circular which reads as follows : 

“It was brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores, depots and within office compounds. It may be pointed out that this practice is extremely objectionable and has to be stopped forth with. All staff may be warned that if any one of them is found organizing or attending a meeting inside railway premises or at places of work; he will render himself liable to severe disciplinary action as such action in his part will amount to misconduct arising out of violation of administrative instructions. Meetings of workers can be held on open grounds away from place of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary. 

           You are to note these instructions very carefully and to ensure their strict compliance in future. 

           Please acknowledge receipt.” 

THE OBSERVATIONS OF THE HON’BLE SUPREME COURT ON THE CIRCULAR ISSUED BY THE GENERAL MANAGER 

           The Hon’ble Supreme Court, while examining the circular issued by the General manager, stated that the direction with which it was concerned in the instant appeal was that which prohibited the holding of meeting within the railway premises including open grounds forming part of those premises. That direction did not deprive the workers any of the freedom guaranteed to them under Article 19 (1) of the Constitution of India. It merely prohibited them from exercising any of them within the railway premises. The question is whether such a direction is violative of Article 19 (1) ? In the instant case, the Hon’ble Supreme Court told, it was not concerned with the meetings held outside the main time office and it was not denied that place formed part of the railway premises. 

           It was, of course, strenuously argued on behalf of the delinquent that the rights guaranteed under Article 19 (1) (a) to (c) are inviolable and they cannot be interfered with excepting in accordance with sub – Articles 2,3 and 4 of the said Article. According to the Counsel for the delinquent, the railway workers have a right to assemble in any place they choose and give expression to their views as long as they do not disturb the work going on in the premises and that right is guaranteed to them under the constitution. 

THE HON’BLE SUPREME COURT’S VIEW ON THE ABOVE CONTENTION / ARGUMENT: 

      On hearing the foregoing argument, the Hon’ble Supreme court stated that it was not in dispute that the Northern Railway is the owner of the premises in question. The fact that Indian Railways are state undertakings does not affect their right tot enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them. Hence unless it is shown that either under law or because of some usage the railway servants have a right to hold their meeting in railway premises, there was no basis for objecting to the direction given by the General Manager. There is no fundamental right for any one to hold meetings in government premises. If it is otherwise there in bound to be chaos in our offices (italicized for emphasis).The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the most convenient place to do so. 

ON THE FREEDOM GUARANTEED TO THE CITIZENS UNDER THE CONSTITUTION 

           The Hon’ble Supreme Court stated that the freedoms guaranteed under our constitution are very valuable freedoms and any attempt to abridge the ambit of such freedoms would be resisted except to the extent permitted by the constitution. The fact that the citizens of the country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold property intervenes. Such a limitation is inherent to the exercise of these rights. The validity of that limitation is not to be judged by the tests prescribed by sub-Articles (2) and (3) of Article 19. In other words the contents of the freedom guaranteed under clauses (a) to (c), the only freedom with which the present appeal was concerned, did not include the right to exercise them in the properties belonging to others. If the Counsel for the delinquent was right in his contention then a citizen of this country in absence of this right under clauses (d) and (e) of Article 19 (1) could not move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.  

Reliance on case laws  

           The counsel for the delinquent, in support of his contention/argument, placed reliance on the following decisions of the Supreme Court of the United States of America 

           (i)        Marsh vrs. Alabama : 90 Law Edn 265 

           (ii)       Tucker vrs. State of Texas : 90 Law Edn 274 

           It may be noted that Tucker’s case was decided on the basis of the rule laid down in Marsh’s Case. Hence, it is not necessary to consider it separately. In Marsh’s case the US Supreme Court laid down that the constitutional guarantee of freedom of press and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company owned town, contrary to the wishes of the town’s management, of a state statute making it a crime to enter or remain on the premises of another after having been warned not to do so. In order to appreciate this decision, the Hon’ble Supreme Court told it was necessary to bear in mind the fact of the case, The delinquent in that case was a Jehovah’s Witness who came into the sidewalk of a private town situate near the post office and undertook to distribute religious literature. In the store the corporation had posted a notice which read as follows : 

“This is a Private Property and without written permission, no street or house vendor, agent, or solicitation of any kind will be permitted.”   

           The appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickashaw she declined. The deputy sheriff arrested her and she was charged in the state court for violating the law. The town in question described in the judgment thus: 

“The town, a suburb of Mobile, Alabama, known as Chickashaw is owned by the Gulf Ship Building Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the MobileCounty Sheriff, paid by the Company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which sim carriers deliver mail to the people of Chickashaw and the adjacent area. The town and the surrounding neighbourhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping centre. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post offices. Intersecting company owned roads at each end of the business block lead into a four lane public highway which turns parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming into the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping centre except the fact that the title to the property belongs to a private corporation”.   

           On the basis of the above descriptions it is clear that the roads and sidewalks in that town had been dedicated for public use. It is in that context justice Black, the presiding judge in this case, observed as follows : 

“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it”. 

It was further observed : 

“We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the Corporation to operate a highway, permitted it to use its property as a town, operate a business block in the town and a street and sidewalk on that business block…… 

As we have therefore stated, the town Chickashaw does not function differently from any other town. The ‘business block’ serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through. The managers appointed by the Corporation cannot curtail the liberty of press and religion of their people and consistently with the purposes of the constitutional guarantee and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendment to the Constitution”.  

THE CONCLUSION 

           After examining Marsh’s case, the Hon’ble Supreme Court stated that in its opinion the rule laid down in Marsh’s case does not apply to the facts of the instant case. The premises with which it is concerned in the appeal unlike the roads and sidewalks of Chickashaw town were not open for use of the general public. They were intended for certain specified public purposes. They could not be used for any other purpose with the permission of the concerned authority. 

           Neither the language of Article 19 (1) nor the purpose behind it lend support to the contentions of the Counsel for the delinquent. On the other hand their acceptance might lead to the conclusion in public office. Hence the Hon’ble Supreme Court did not accept the contentions. 

THE VERDICT :

           The Hon’ble Supreme Court allowed the appeal filed by the Railway Board. 

THE ASSUMPTIONS 

01.      The freedoms guaranteed under the Constitutions of India are neither absolute nor unfettered. The freedoms can be enjoyed by the citizens subject to reasonable restrictions. 

02.      Right to form unions or associations as guaranteed under Article 19 (1) (c) of the Constitution is neither an absolute nor an unfettered right. It has its inherent limitations. 

03.      Right to form associations or unions does not include the right to hold meeting within   the official premises. 

04.      The Employer would be well within its right to refuse permission to the unions to hold meeting within the official premises or even in an open space belonging to the employer.  

05.      Freedom of speech as guaranteed under the Constitution does not give freedom to a trade union leader to speak foul, abusive, discourteous or intemporal languages. 

06.      The use of the words by a trade union leader viz “Tum Do Saal Se Kya KarRahe ho Humko Patahai, Tum Ministry Nahin Ho, Tum Apne interpretation apne pas rakho” (to an officer) is certainly abusive and intemporal languages. The trade union leaders       should not think that they are above the rules and the law and the Management should play to their whims and fancies. 

07.      A trade union right is not a statutory right. This is distinguishable from the right to form associations or union. The trade union right should be exercised very carefully so that it does not harm the employer administratively or financially.