Titas Gas Karmachari Union Vs. Secretary, Ministry of labour and Manpower and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 6704 and 2218 of 2009

Decided On: 03.02.2014

Appellants: Titas Gas Karmachari Union Vs. Respondent: Secretary, Ministry of labour and Manpower and Ors.

Hon’ble Judges/Coram: Sheikh Hassan Arif and Mustafa Zaman Islam, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Abdur Razaque Khan and Md. Nurul Huda, Advocates

Acts/Rules/Orders: Constitution Of The People’s Republic Of Bangladesh - Article 38

JUDGMENT

Sheikh Hassan Arif, J.

1. Since similar questions of law and facts are involved in the aforesaid two writ petitions, they have been taken up together for hearing, and are now being disposed of by this single judgment. In Writ Petition No. 2218 of 2009, Rule Nisi was issued, at the instance of the petitioner-Trade Union, calling upon the respondents to show cause as to why respondent No. 2 (Director of Labour) should not be directed to initiate proceedings for cancellation of registration of respondent Nos. 5 to 7 (three trade unions) under section 190 of the Bangladesh labour act, 2006. In Writ Petition No. 6704 of 2009, at the instance of the same petitioner-Trade Union, Rule Nisi was issued calling upon the respondents to show cause as to why the impugned office memo No. RTU/CBA (415)/2009/612(2)/l(3) dated 4-10-2009 (Annexure-C) issued by the Director of labour (respondent No. 2) for taking steps to hold election to determine Collective Bargaining Agent (CBA) in the respondent No. 4 establishment, without holding an enquiry about eligibility and fulfillment of legal requirements and preconditions on the part of respondent Nos. 5, 6 and 7-Trade Unions to participate in the said CBA election, should not be declared to be without lawful authority and of no legal effect.

2. Short back-ground facts, relevant for the disposal of the aforesaid Rules, are that the petitioner, Titas Gas Karmachari Union (Registration No. B-1193), has been performing its functions as trade union in the Titas Gas Transmission and Distribution Co. Ltd. (respondent No. 4) since its registration on 15-9-1969 under the provisions of the then Industrial Relations Ordinance, 1969. The petitioner claims to have had 1050 workers of the respondent No. 4-establishment as its members out of total 1398 workers. This being so, according to it, no other trade union could have had minimum 30% of the total workers as its members in order to perform as validly registered trade union. The petitioner, being the only trade union, became Collective Bargaining Agent (CBA) in view of the relevant provisions of law applicable at the relevant time and, accordingly, signed several memorandum of settlements with the management of the respondent No. 4, e.g., the settlements dated 19-2-1987 and 3-4-1990. The petitioner also worked as interim trade union when the question of determination of CBA arose in 1991, which is evident from the letter dated 20-5-1991 issued by respondent No. 2 recognizing the petitioner as the interim CBA. However, since respondent No. 4 establishment suddenly stopped collection of petitioner’s membership subscriptions through check-off system in 2004, the petitioner moved Writ Petition No. 1852 of 2005, wherein this Court, by order dated 2-4-2005, issued Rule upon the respondents to show cause as to why they should not be directed to continue collection of monthly subscription from the wages of the members of the petitioner trade union through check-off system (though the Rule issued in the said writ petition has been discharged recently for non-prosecution vide order dated 30-1-2014). Further case of the petitions is that three other trade unions, namely respondent Nos. 5, 6 and 7, have somehow got registrations from the Registrar of Trade Unions on 18-10-1989, 29-7-1991 and 31-7-1991 respectively and have been functioning illegally; that when the respondent No. 2 took initiative once to inquire into the matter and asked all the trade unions and respondent No. 4-establish-ment to furnish relevant papers and information in respect of the strength of membership, the petitioner complied therewith, but the respondent No. 5-7 failed to furnish those required information showing their minimum 30% membership strength. It is contended that since the respondent No. 5-7 did never have minimum 30% membership strength, they could not have validly registered and, as such, cannot function legally, and that it is the responsibility of respondent No. 2 to take necessary steps for cancellation of their registrations, which it was not doing, in spite of repeated requests by the petitioner vide letter dated 3-3-09 and notice demanding justice dated 19-3-2009, prompting the petitioner to move this Court and obtain the aforesaid Rule issued in Writ Petition No. 2218 of 2009. In addition, since the respondent No. 2 has taken initiative to hold CBA elections by issuing the impugned letter dated 4-10-2009 (Annexure-C) without resolving those issues, the petitioner again moved this Court and obtained the other Rule issued in Writ petition No. 6704 of 2009. By furnishing a supplementary affidavit, the petitioner now claims that it has 701 workers as its members out of total 1167 eligible voter employees of the respondent No. 4-establish-ment.

3. Rules are opposed by respondent No. 6,-Titas Gas Employees Union (Registration No. B-1936), claiming that they have requisite number of members to continue as validly registered trade union and, as such, they are entitled to participate in the CBA election, and that the petitioner has been filing writ petitions before this Court just to delay the holding of CBA elections. It is further stated by respondent No. 6 that even the persons holding the posts of president and secretary of the petitioner trade union are not validly elected office bearers and, as such, the Rules should be discharged.

4. Mr. Abdur Razaque Khan, learned senior counsel appearing for the petitioner-trade union in both the writ petitions, submits that as per the applicable law, an establishment cannot have, at a particular relevant time, more than three registered trade unions. However, admittedly, the respondent No. 4-establishment now has four registered trade unions including the petitioner and respondent No. 6, and, as such,, it is the responsibility of the Director of labour to immediately hold enquiry and take steps for cancellation of registrations of the trade unions which do not have minimum 30% membership strength. Learned advocate further submits that since at present the petitioner has about 70% of total employees and workers as its members, it is incumbent upon the respondent No. 2 to take immediate steps for cancellation of registrations of at least two trade unions because under no circumstances there can be more than two trade unions under the law given the fact that the petitioner’s membership strength is 70% of the total workers. Mr. Khan further argues that without resolving these issues as to the existence of lawfully registered trade unions, the Director of labour cannot take initiative to hold CBA election among four trade unions and, accordingly, a direction should be issued from this Court to resolve those disputes first and to hold CBA election thereafter, if necessary. Mr. Khan points out that this petitioner has been the only validly registered trade union since its inception and, accordingly, functioning as CBA and, as such, should still now be allowed to function as the interim CBA until and unless the new CBA is elected through CBA election among the validly registered trade unions.

5. Mr. Md. Zahidul Hoque, learned advocate appearing for the respondent No. 6, on the other hand, submits that since respondent No. 6 obtained registration validly and still functioning as such, it has every right to participate in the CBA election until its registration is cancelled in accordance with law. Learned advocate further submits that the petitioner-trade union is even not properly represented by it’s validly elected President and Secretary and, as such, the Rule issued in the aforesaid writ petitions should be discharged with a direction to hold CBA election immediately.

6. Considered the submissions of the learned advocates, perused the writ petitions, affidavits in opposition and materials on record. Sections 178 and 179 of the Bangladesh labour act, 2006 (hereinafter called “the said Act”) provides for the procedure of registration of a trade union in an establishment thereby requiring some information and/or papers that are to be furnished by a particular trade union to obtain registration. One of the vital requirements to obtain such registration is to have minimum 30% of total workers as its members [see 179(2)], while sub-section (5) of section 179 provides that no establishment can have more than three registered trade unions. Section 182, on the other hand, provides that once the labour Director is satisfied about the compliance of the requirements of registration, he shall issue a registration certificate in favour of a particular trade union within 60(sixty) days from receipt of the application for registration. Again, while sub-section (4) of Section 182 provides that if, for any reason, such registration is not granted or rejected, the applicant trade union may prefer appeal within 30 (thirty) days of such refusal/rejection before the labour Court. Sub-section (6) of the same section gives the applicant-trade union a further right to prefer second appeal before the labour Appellate Tribunal if it is aggrieved by the decision of the labour Court upon its first appeal.

7. Thus, it appears from the relevant provisions of the said act that it is the trade union, which applies for registration, can only challenge the order of refusal or rejection of registration. This follows that the law has not given any specific right to the existing trade unions to prefer any appeal or objection before the labour Court against granting of registration to a particular trade union. The only avenue open to the existing trade unions is to file complaint before the labour Director against a particular trade union on allegations that it has lost its required qualifications to exist as a validly registered trade union, and upon such complaint, the labour Director is required to hold inquiry and seek ‘permission’ from the labour Court only if, upon inquiry, he is satisfied that the registration of that particular trade union should be cancelled. Once such ‘permission’ is given by the labour Court, the said trade union may even prefer appeal against such ‘permission’ before the labour Appellate Tribunal within 30 (thirty) days in view of sub-section (1) of Section 191, which further provides that the decision of labour Appellate Tribunal on that appeal shall be final. Sub-Section (2) of Section 191, however, provides that until such appeal is disposed of by the labour Appellate Tribunal, the said trade union shall be permitted to continue its functions as a trade union.

8. Now, the main allegation of the petitioner trade union is that since it has 70% membership strength of total workers of the respondent No. 4-establishment and at a certain point of time it even had 80% strength, it should be allowed to function as the only trade union in the said establishment unless and until any other trade union fulfills the minimum requirements to function as a validly registered trade union, namely that they have minimum 30% membership strength.

9. It is admitted position that during the existence of the petitioner trade union, three other trade unions got registration. Therefore, once they got registration, they acquired the right to function as trade unions in the concerned establishment. Now the question is how those trade unions got registration when the petitioner is showing evidence that it had more than 80% membership strength at that relevant time. There may be various reasons for granting registrations to a particular trade union, though, in reality, it does not have 30% membership strength. Even sometimes a particular establishment may have more than three registered trade unions when some existing members of a particular trade union hold dual or triple membership at the same time, which is prohibited by law and, once detected, punishable in view of Section 193 of the said act. Thus, it may be said that while granting registration the labour Director did not enquire into the matter of holding double or triple membership by a particular member, otherwise it would not have been possible to have more than three registered trade unions in a particular establishment. Thus, Mr. Khan has correctly pointed out that the Registrar of Trade Union (now labour Direction) must be very careful when it is granting registration to the 3 or 4th trade union in a particular establishment because on such occasions there is every possibility that some members are holding double or triple membership. Therefore, it may also be said that while granting registration to the 3 and 4th trade union or even to the 2 trade union in respondent No. 4, the Register of Trade Unions acted negligently. This kind of negligence on the part of the Registrar Trade Union should not be taken lightly because of the fact that one illegal registration may cause huge problem to other legally registered trade unions in respect of their fundamental rights to form association and to perform as, such as, guaranteed under Article 38 of the Constitution.

10. Be that as it may, it is now admitted that at present there are four registered trade unions performing or existing in the respondent No. 4-establishment. However, the proper stage has not yet come to hold that this or that particular trade union is performing illegally unless an inquiry to that effect is held by the Director of labour. Once the labour Director is satisfied upon such inquiry that a particular registered trade union has become disqualified because of the fact that it has lost its minimum 30% strength of membership or for any other reason, he will seek permission from the labour Court to cancel its registration, and only after obtaining such permission, he can cancel the registration of a particular trade union. Not only that, the said particular trade union will still have the right to prefer two consecutive appeals against such permission granted by the labour Court, and sub-section (2) of Section 191 has given the said trade union a right to be allowed to function as trade union until its 2nd appeal is disposed of finally against it by the labour Appellate Tribunal. This being the legal dilemma, the delinquent trade union or unions will always have the right to function as registered trade union until and unless the permission to cancel their registration is approved finally by the labour Appellate Tribunal. In other words, until such appeal is disposed of against them, they will still be allowed to function as trade unions, which includes their right to participate in the election for determination of the Collective Bargaining Agent. This position of law has already been settled by this Court in the case of Abul Hossain vs Bangladesh [2 BLC 632], wherein the concerned establishment had five registered trade unions and his Lordship Justice Mainur Reza Chowdhury (as he then was), delivering the judgment of the Court, held that unless the registration of other trade unions are cancelled, they remain to be registered trade unions of the said establishment and, as such, they are entitled to receive notice to participate in the election for determination of the Collective Bargaining Agent. This Court also took the same view in a recently unreported case in Writ Petition No. 2080 of 2012.

11. As we acknowledge the grievances of the petitioner trade-union and hold that the said grievances are genuine, at the same time we cannot go beyond the scope of the provisions of law. It is very much understandable that some sort of gross illegality is going on in the respondent No. 4-establishment as regards the existence of more than three registered trade unions and holding of dual or triple membership by several workers of the said establishment. In addition, the negligence on the part of the labour Director or Registrar of Trade Union in granting registration without proper scrutiny cannot be ignored. Therefore, this Court is of the view that both the processes, namely the process of holding CBA election and the process of cancellation of registration, should continue at the same time. When we hold that the respondent nos. 5-7 have equal right to participate in the CBA election unless their registration is cancelled through the process as provided by law, we also declare that the petitioner’s right to be the only trade union and, for that matter to be the CBA without any election, should also not be ignored as the said right of the petitioner is also guaranteed by the law. Recognizing the above anxiety of the petitioner trade union, we are of the view that the Director of labour (respondent No. 2) should be directed to go ahead with both the processes, namely the process of holding CBA election as well as the process of cancellation of registration of the trade unions.

12. Accordingly, the labour Director (respondent No. 2) is directed to immediately initiate enquiry as to the strength of membership of every trade union in the respondent No. 4-establishment and to reach a decision as to the identification of validly registered trade unions and as to the cancellation of registration of trade union or unions if any of them has become disqualified in the meantime and to take actions against the members of the trade unions who are holding double or triple membership at the same time. Initiation of this process of cancellation of registration must start immediately upon receipt of the copy of this judgment and that process must be finished within 60 (sixty) days thereafter. At the same time, since no CBA election has ever been held in the respondent No. 4-establishment, respondent No. 2 must also take immediate initiative to hold CBA election among the registered trade unions and that process should start within 30 (thirty) days from receipt of the copy of the judgment. If the CBA election precedes the determination of validly registered trade unions by the labour Director, and it transpires, after enquiry, that the elected trade union itself does not have minimum strength of membership as required by law or it has any other disqualification, the labour Director must take immediate steps for seeking permission from the labour Court for cancellation of the registration of that trade union, though elected in the meantime as CBA, and after cancellation of such registration, will again take initiative for holding CBA election immediately. With the above observations and directions, the Rules issued in the above two writ petitions are disposed of.

Communicate this order at once.