Employers can't restrict members from contesting trade union elections or holding office: Bombay High Court

The Bombay High Court recently held that in a democracy such as India, no employer can restrict the freedom of trade union members to either contest in the union's elections or continue as office bearers of the trade union [National Federation of Atomic Energy Employees v UOI]..A division bench of Justice Ravindra Ghuge and Justice Ashwin Bhobe made the observation while allowing a petition filed by National Federation of Atomic Energy Employees (NFAEE)and the Atomic Energy Workers and Staff Union, both recognized trade unions representing non-gazetted staff of the Department of Atomic Energy (DAE)."In a country which is administered by the Rule of Democracy and which is recognized to be one of the largest democracies in the world, no employer can be permitted to impose restrictions on the freedom of the members of a Trade Union in either contesting elections or continuing as Office Bearers of the Trade Union, by elections or unopposed, or for canvassing someone’s candidature," the Court held..The unions before the Court had challenged a series of Office Memorandums issued by the Department of Personnel and Training (DoPT) between 2019 and 2022. These memorandums invoked Rule 15(1)(c) of the Central Civil Services (Conduct) Rules, 1964, to impose a cap of two terms or five years on union office bearers and made it mandatory for employees to seek prior government permission before contesting internal union elections."It is not only arbitrary, but is also undemocratic for an employer to superimpose conditions for deciding who should contest an election and for what tenure should he hold the office and for how many terms should he get elected," the Court observed while striking down these restrictions..The petitioners had argued that restrictions imposed on them unlawfully interfered with the functioning of registered trade unions and were inconsistent with the Trade Unions Act, 1926, which gives unions the autonomy to self-govern through their own constitutions.They contended that the government’s executive orders violated the right to freedom of association under Article 19(1)(c) of the Constitution, and that employer control over internal union elections was both unconstitutional and undemocratic.The government, however, defended its decision, asserting that prolonged tenure in union positions led to "vested interests" and a decline in employee productivity..Rejecting the government’s justification, the Court made it unequivocally clear that trade unions, once registered under the Trade Unions Act, are self-governing bodies whose internal affairs cannot be dictated by the employer.“The number of posts available, the tenure of the post, the eligibility criteria for contesting such elections, etc. are an integral part of the constitution of the Trade Union. No employer can create such service rules which would create an embargo on the terms and conditions or the clauses of the Constitution of a Trade Union," the Court said.Further, the Court held that an employee’s participation in union affairs cannot be curtailed through executive instructions or office memorandums.“The freedom to franchise/ to contest an election/ select from amongst the contesting candidates/ to enjoy a term prescribed under the constitution of the Union, etc., cannot be curbed by a circular or Office Memorandum of an Employer," the bench said..Allowing the petition, the Court held that Rule 15 of the Central Civil Service (Conduct) Rules, 1964, is not applicable to the petitioner unions, declared the government’s restrictions on tenure arbitrary and unenforceable, and directed the Department of Atomic Energy not to insist on prior permission from the government for employees to contest union elections or to impose any tenure limit on office bearers..Advocate Ramesh Ramamurthy along with advocates Saikumar Ramamurthy, Seema Sorte, Priyanka Katkam appeared for the petitioner-unions.Advocate Amrendra Mishra along with advocate Ashutosh appeared for the Union of India, the DoPT and other respondents. .[Read Order]