CHAIRMAN, STATE BANK OF INDIA AND ANR.versusALL ORISSA STATE BANK OFFICERS ASSOCIATION & ANR.

          CHAIRMAN, STATE BANK OF INDIA AND ANR.                               A
                                     v.
   ALL ORISSA STATE BANK OFFICERS ASSOCIATION & ANR.

                             JULY 31, 2003

         [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]                          B

     The Rules For Verification of Membership And Recognition of Trade
Unions Rules, 1994; Rule 24:

       Review Petition filed by Bank against the judgment of the Supreme       C
Court conferring rights of representation on unrecognized minority
associations-Held, denial of right of representation to the unrecognized
minority association would not amount to discrimination when such right was
not even conceded to the majority association-Since Central Government is
the appropriate Government in respect ofpetitioner-Bank, Rules made by the     D
State Government not binding on the Bank-Attention of the Court was not
adverted to the existing elaborate grievance redressal machinery-Review
Petition allowed, sine crucial issues were not considered

      Respondent No.I-Association, an unrecognized minority association
of bank officers had succeeded in a public interest litigation before the      E
High Court praying for conferment of certain rights as per Rule 24 of
the Rules For Verification of Membership And Recognition of Trade Union
Rules. High Court issued a Writ of Mandamus to the Review Petitioner-
Bank to implement the principle underlying Rule 24. Aggrieved bank's
appeal before this Court was dismissed. Hence the present Review               F
Petitions.

      It was contended for the Review Petitioner that the denial of certain
rights to the minority unrecognised associations by the bank which were
not conceded even to recognized majority associations, would not amount
to discrimination, but if conferred, would amount to reverse discrimination    G
against recognised Unions; that since efficacious grievance settlement
machinery was in existence, High Court was not justified in importing the
principle from inapplicable Rule 24 to override the existing one; that these
submissions have been lost sight of in the impugned judgment of this
Court; and that if such a principle is made applicable in one zone, it would
                                    27                                         H
     28                       SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A    create serious repercussion all over.

           On behalf of tlie respondent, it was ~ubmitted that in the absence of
     any statutory provision to determine the representative character of Union/
     Association, the Supreme Court and the High Court had rightly conferred
     such rights on minority associations facilitating them to hold discussions
B    with the employer.

          Allowing the Review Petition and appeals, the Court

            HELD: 1.1. There is no Common Law right of a trade union to
     represent its members, whether for purposes of collective bargaining or
C    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 facts and circumstances of the case,
     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
·D   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 that the attention of this
     Court was not adverted to the elaborate grievance procedure machinery
     which was in existence and the details are placed on record. (33-E-G)
E
           1.2. It cannot be held that denying a right of representation to the
     minority union, when such a ~ight is not conceded even to the majGrity
     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
F    system of representation in grievance procedure. In the absence of
     arbitrariness or discrimination, there was no scope at all for interference
     in exercise of writ jurisdiction. (33-H; 34-A-B)

          1.3. The appropriate Government in respect of Review Petitioner-
G Bank is the Central Government and the rules made by the State
     Government cannot be enforced against it. Since these crucial issues were
     not considered in the judgment under review, on consideration of all
     aspects of the matter, the impugned judgments are set aside. [34-C-D)

          CIVIL APPELLATE JURISDICTION : Review Petition (C) Nos. 1111-
H    1112 of 2002 in Civil Appeal Nos. 3337-3338 of 2002.
       CHAIRMAN,S.B.J 1•. ALLORISSASTATEBANKOFFICERSASSON.[SRIKRISHNA, J.)   29

     From the Judgment and Order dated 24.11.1998 /27.3/99 of the Orissa          A
High Court in O.J.C. No. 8863 of 1997/C.R. No. 15 of 1999.

      Mukul Rohatgi, Additional Solicitor, Harish N. Salve and Sanjay Kapur
for the Petitioners Appellants.

      Rajiv Dhawan, Mrs Shubhra Kapur, Sanjiv Kumar and B.K. Satija for           B
the Intervenor.

     R.N. Trivedi, Additional Solictor General, Ms. Sunita Sharma and Ms.
Sushma Suri for the Respondent.

      In-person for the Respondent No. 1.                                         c
     The Judgment of the Court was delivered by

     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.                                                                D
     The circumstances under which the present review petitions arise, briefly
recounted, are as follows:-

      The Review Petitioner is a nationalised b!}nk and Respondent No. 1,
All Orissa State Bank Officers Association (hereinafter referred to as            E
"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   F
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         G
the majority of the officers.

      By the judgment dated 24.11.98 the writ petition was allowed

     directing inter-alia as under: -
                                                                                  H
                                                                                            .iii
    30                         SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A               "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
B           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
                                                                                        i "
                                                                                             ~
    of rules known as "The Rules For Verification Of Membership And
c   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 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
D
    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 pennit the Respondent
    association, albeit that it was unrecognised, to meet and discuss with the
E   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                4
    Appeals were dismissed by a judgment of this Court dated May 6, 2002. The
F
    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 nonnal, 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
G   arbitrariness, bias and favouritism· in the.matter ofrecognition 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
H
       CHAIRMAN,S.B.I '" ALLORISSASTATEBANKOFFICERSASSON.[SRIKRISHNA, J.)   3J
on nonnally. The Bench took notice of the possibility of multiple trade unions   A
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.   B
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."
                                                                                 c
     After noticing the judgment of this Court in the Balmer Lawrie Workers'
Union, Bombay ad Anr. v. Balmer Lawrie & Co. Ltd and Ors., [1985] 2 SCR
492 this Court went on to observe:

        "The judgment of the High Court disposing of the writ petition and D
        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 E
        officer, labour court, industrial 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      F
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       G
Law there is no obligation on an employer to confer upon a union the right
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              H
    32                          SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A 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.

B          A reference to the counter affidavit in tbe 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
C   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
D   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
E   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.

F          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
G   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
H   not constitute a grievance to be processed under the said procedure. It is
       CHAIRMAN. S.B.I r. ALLOR ISSA STA TI: BANK OrFICERS ASSON. [SRI KRISHNA . .I. J   JJ

made clear that any action taken against individuals for disciplinary purposes A
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. B
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 C
has been determined. It is also contended that there is no statutory provi$ion,
which could decide as to which of the contending trade unions really reprdents
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 D
is precisely what has been accepted 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                       E
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,                 F
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                 G
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 H
    34                         SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

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
B   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 ~uch 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.
C   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
D   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.

    S.K.S.                                 Review Petitions and appeals allowed.