Article (September-2016)

Articles

Remedies against unlawful actions of the Union

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01-Sep-2016

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In a suit for an ad interim injunction in Patel Oil Mills vs.Relaxo Rubber & Allied Industries Employees Union (2000 (85) FLR (Sum)7=, (1999) (2) LLJ 894 Del= 1999 (95) FJR 434) the Delhi High Court has inter-alia observed the following: "Demonstrations, gheraos and such other activities are the means and tools through which the workers and the workmen ventilate their grievances against the management. Such activities are recognised as legal trade union activities which are considered to be a peaceful mechanism to display group feelings towards a cause and for redressal of the grievances. Such legitimate trade union activities when and if carried in a peaceful and legal manner are not to be shut out as in that event the same might cause permanent damage to the cause of industrial peace. Such trade union activities are also recognised by the laws of the country. At the same time, it cannot be lost sight of the fact that no one could be allowed to exercise his right so as to cause harm and prejudice the exercise of right of another. No one could be allowed to physically interfere with the trade and business of the plaintiff. Therefore, in such matters, a balancing scale has to be applied so that the important freedom enjoyed by the trade union activists is restricted only to the extent needed to preserve the proper and efficient functioning of the business of the plaintiff. The equation must be properly balanced so that the rights of the defendants to enjoy their freedom and to exercise their legal rights are not rendered ineffective and illusory and at the same time the business of the plaintiff does not suffer."


Section 17 and 18 of the Trade Union Act provides immunity under certain cases to various activities of the Union. The Trade Union has a legitimate right to agitate. Similarly the employer also have the right to run its business peacefully. Hence, putting a balance between the two rights is a difficult proposition and the courts have therefore sometimes declined to intervene on the application of the Employer. (refer: Delhi Stock Exchange Association Vs Delhi Stock Exchange Karamchari (2000(86) FLR 705 = (2000)II LLJ 436 Del).


Nevertheless, in case of IR flare ups when the Union resorts to various actions depending upon the facts and circumstances the employer however, has to decide on a course of action so that it can quell the agitation, keep the establishment operational and find an amicable way forward to establish Industrial peace and harmony.


Conciliation- The role of the State in securing harmonious Industrial Relations need not be over emphasized which have been also recognized in the Dunlop Model. The conciliation machinery of the State plays a major role in securing Industrial peace. The Industrial Disputes Act, provides for appointment of Conciliation Officers with empowerment to conciliate under section 12 (1) of the Act.


In general the agitation of by the union is a result of failure of the parties to arrive at a settlement and hard posturing. However, the way forward for any amicable settlement can be only through dialogue, discussions and deliberations. Hence, conciliation opens another channel to arrive at an amicable settlement through mediation of the third party. 


However, a mere strike notice or a dharna might not be always enough to move the conciliation machinery (ref: State Bank's Staff Union V. State Bank of India 1991 I LLJ 163 = 1991 Lab IC 197) and therefore in order to secure the intervention of the Conciliation Authority  the employer has to show that there exists a genuine Industrial Dispute which might jeopardize the Industrial peace in the organization. (ref: D.C.M Chemical Employees Lokhit Congress Union Vs Delhi Administration (1983 ILLJ 306). Once the conciliation is put to action the Union cannot go for a strike during the pendency of the conciliation proceedings and seven days after the conclusion of such proceedings in terms of section 22 (d) of the I.D. Act in case of public utility service and section 23 (a) for other Industries (refer M/S. Lokmat Newspapers Pvt. Ltd vs Shankarprasad 1999 (83) FLR 684 = 1999 (2) LLJ 600 = AIR 1999 SC 2423=1999 (2) CLR 433 ). This is the other advantage the Employer can obtain during the pendency of conciliation as any strike during this period will be utterly illegal. Further, the Employer can always request the Conciliation Authority to influence the Union through his good office to withdraw any other form of agitation during the pendency of the conciliation proceedings and if the Union is obstinate in its attitude for continuing with their agitation even during the conciliation proceeding, the Employer can reap the advantage in other legal remedies.


Police Protection & Mandamus- If the right of the employer is infringed to carry out its business peacefully the Employer has the right to get protection from the police tocarry out its business peacefully and the Union cannot claim immunity under section 18 of the Trade Union Act. The Employer under such circumstances, need to file complaint with the Local Police having jurisdiction and seek protection. 

Putting a complaint before the police always does not guarantee that the Police will act. It has been found that in India that there has been reluctance on part of the Police to act on a complaint due to various extraneous reasons. If the police is found wanting to take actions on the complaint of the Employer it can take recourse to Article 226 and pray for writ Mandamus before the High Court. The term 'mandamus' literally means 'the order'. The writ of mandamus is a command issued by either the Supreme Court or High Court to a public authority directing them to perform a public duty or to refrain from doing illegal act. While dealing with the scope of writ Mandamus in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani and others ( 1989 II  LLJ  324= 1989 AIR 1607) the Supreme court has observed that mere " technicalities should not come in the way of granting that relief under Article 226 ..."