TEXT. Right of Unions to Demonstrate Peacefully

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1 STATE BANK OF INDIA OFFICERS ASSOCIATION [Chennai Circle] State Bank Buildings, Telephone : # 84, Rajaji Salai, Post Box No.1992, Fax : Chennai Telegram : SUPSTAFF sbioacc@yahoo.com Website: Circular to All Unit Secretaries / Members: No. 56 /75/ th October, 2013 Dear Comrades, We are reproducing herewith the article published in Economic & Political Weekly dated 26 th October 2013 for your reading. With Greetings, Comradely yours, (D. THOMAS FRANCO RAJENDRA DEV) GENERAL SECRETARY Commentary TEXT Right of Unions to Demonstrate Peacefully Economic & Political Weekly Vol - XLVIII No. 43, October 26, 2013 T R Bhat A recent ruling by the Madras High Court adjudicates in favour of trade unions' right to hold demonstrations, albeit peacefully. It also questions whether such a demonstration by a recognised offi cers' association amounts to "misconduct". T R Bhat (bhat_tr@yahoo.co.in) is a former joint general secretary of the All India Bank Officers Confederation and former president of the Corporation Bank Offi cers' Organisation, and is based in Mangalore. There have been serious attempts in recent times to curb the rights of trade unions to organise strikes and hold peaceful demonstrations in pursuance of their demands. In the wake of liberalisation the state has joined hands with employers to deal with workers who are conscious of their rights with an iron hand, often invoking the provisions of criminal laws. What unfolded in 2012 in the Maruti Udyog factory in Haryana is a clear illustration. The managements of some of the public sector banks seem to be competing with their counterparts in the private sector in handling organised labour properly. Against this background a recent decision of the Madras High Court (henceforth HC) (writ appeal 431 and 432 of 2013 and writ petition of 2013 and connected miscellaneous petitions between Thomas Franco Rajendra Dev and another vs SBI management; judgment of 4 July 2013) in connection with the agitation of the officers of the State Bank of India (SBI) comes as a welcome relief to the working class. Background A dispute arose between the management of the SBI and the All India State Bank Officers Federation (AISBOF), the recognised officers association in the bank on the management s unilateral decision to introduce seven-day banking in all its branches. The officers called for a strike in November It was later withdrawn on the management s assurance that the decision would be kept in abeyance. On 25 August 1

2 2012, the chairman of the bank made a public statement that all its branches would work on Sundays as part of seven-day banking. As this announcement was against the assurance given earlier to the AISBOF the office-bearers again called for lunchhour demonstrations on 28 August 2012 in the Chennai local head office (LHO) of the bank and other administrative offices across the country. A group of about 250 officers led by the president and general secretary held demonstrations at the LHO, Chennai shouting slogans against the chairman and demanding introduction of five-day banking. The bank management initiated disciplinary proceedings against the general secretary, D Thomas Franco, Rajendra Dev and the president, D Suresh Kumar charging them with misconduct as defined in the appropriate service rules governing the conduct of the officers of the bank. Rajendra Dev and Suresh Kumar were officers in the bank. Their replies to the charge sheet were not acceptable to the management and enquiry proceedings against them were initiated. In the meantime an identical charge sheet against another office-bearer in Ahmedabad was withdrawn by the same bank s management on the grounds that he was being appointed as director on the central board of the bank. The president and general secretary of the officers association filed writ petitions before the Madras HC challenging the maintainability of the charge sheet and questioning the discriminatory treatment. The single judge rejected their contentions and refused to interfere with the proceedings. Aggrieved by this decision the officers filed appeals before the division bench of the HC. Management s Version In conformity with the standard argument of many employers, the SBI management contended that the office-bearers held demonstrations inside the bank premises, instigated other officers to join the protest and shouted slogans and by such conduct disturbed the peace within the premises, hindering the bank s work and its regular business activity. It was alleged that the actions of the office-bearers were intended to tarnish the image of the bank. The behaviour of the office-bearers, according to the management, amounted to misconduct in terms of the service regulations attracting disciplinary actions. Some fundamental questions regarding trade unions right to demonstrate, their liability for what are essentially trade union actions and the immunity for such actions under Section 18 of the Trade Unions Act (TUA), 1926, came up for consideration before the division bench of the HC. These were a few of the questions debated: (1) Can unions demonstrate inside the premises of the employer? (2) Should there be restriction on the place they can demonstrate? (3) Does holding a demonstration amount to misconduct? (4) Can the leaders who call upon the members to demonstrate against the management be charge sheeted for instigating the members and is such conduct objectionable? (5) Can courts intervene when disciplinary action is initiated for an act done in the capacity of members/office-bearers of a union? These questions impinge on the larger issues of freedom of expression, the right to form unions and certain immunities recognised by statute against possible vengeful actions by infuriated employers. In the banking industry, Section 36AD of the Banking Regulation Act, 1949 is often invoked to slap criminal cases against union functionaries. It prescribes imprisonment and fine for certain activities listed therein. They are: (a) Obstructing any person from lawfully entering or leaving any office or place of business of a bank or from carrying on any business there. (b) Holding within the office of a bank any demonstration which is violent or which prevents or is calculated to prevent the transaction of its normal business. (c) Acts calculated to undermine the confidence of the depositors in the bank. 2

3 The provision has been very handy for managements as it is easier to contend that the demonstrations have undermined the confidence of the depositors in the bank. The lower courts are generally carried away by such arguments and grant injunctions ex parte against demonstrations even if they are peaceful. The courts also stipulate a distance of 100 or 200 metres around the premises as no-demonstration zone. Right to Protest Peacefully It is relevant to look into the view of the Supreme Court (SC) on the right to hold demonstrations. In 1962 in Kameshwar Prasad and Others vs State of Bihar and Another (AIR 1962 SC 1166) the apex court had upheld the right to demonstrate peacefully as a fundamental right in these words: thus public exhibition by a section is the peaceful manifestation of the feelings and sentiments of an individual or a group. It is an indication of one s ideas to others to whom it is intended to be conveyed. It is in effect therefore, a form of speech or of expression, because speech need not be vocal, since signs made by a dumb person would also be a form of speech. A peaceful and orderly demonstration, hence, is not violative of Article 19(1) (a) or Article 19(1) (b). The case came up to challenge a law of the Bihar state government which prohibited strikes and demonstrations by government servants. The Court had struck down the clause prohibiting demonstrations. Based on the apex court s judgment, several high courts over the years have ruled in favour of the right of workers to hold demonstrations during office hours and within the premises subject to the rider that the action should be peaceful. For example, in 1976, a division bench of the Karnataka High Court in Chandrana Brothers & ors vs K Venkata Rao & ors [1976 (1)-Kar L J 245] observed: The members of a trade union may resort to peaceful agitation by a gathering together either outside the industrial establishment or inside within the working hours provided it is peaceful and no violence, intimidation or molestation is involved and there is no violation of the provisions of law. The display of posters within or outside the place of business is permissible (emphasis added). In 1982 in Indian Bank vs Federation of Indian Bank Employees Union and another ( LLJ 123), a division bench of the Madras High Court had refused to grant an injunction to restrain the employees of that bank from holding demonstrations inside the premises of the bank. The HC had said: The workmen are conferred with statutory rights to have freedom of expression in making known to others their feelings and to convey to the public and to the management as to how they are affected. In a similar ruling in 1992, in Ahmedabad Textile Research Association vs ATIRA Employees Union & Anr (1992 II LLJ 1994) a division bench of the Gujarat High Court had upheld the right of the employees to hold peaceful demonstrations and dharanas even inside the premises. The observations of the Court are instructive: Any agitation by workmen must be peaceful and non-violent. Any concerted movement by workmen to achieve their objectives is certainly permissible even inside the industrial establishment within the working hours so long as it does not prove to be unlawful, tortuous or violent. Demonstrations and dharanas, peaceful when they are, have now come to be accepted as falling within the permissible sphere of agitations by the labour. Demonstrations and dharanas may cause inconvenience to the management. But they are weapons, as strike is, in the armoury of the labour to pressure the management to accede to their demands. Such dharanas and demonstrations, when they do not turn unlawful, violent and tortuous, cannot be curbed by orders of Civil Court and would come within the purview of Section 18 of the Trade Unions Act (emphasis added). Curbing the Right Like in other sectors, in spite of several court rulings, the bank managements have consistently tried to stifle the freedom of expression even if it is peaceful and orderly. In the late 1990s, the management of the Manipal based Syndicate Bank came down heavily on the recognised officers association when the officers went on an agitation 3

4 on certain issues. Criminal cases were filed against the key union functionaries who instigated the officers. In 2009, the management of the Mangalore based Corporation Bank obtained ex parte injunction from a local court restraining the members of the recognised officers association from holding demonstrations in front of its branches/offices anywhere in the country! This was followed by disciplinary action against the office-bearers. In the present case the attitude of the SBI management towards the demonstrations by its officers was reflected in the speech made by its chairman on 8 October There was also a patent discrimination in as much as the identical proceeding against an office-bearer of the Ahmedabad Circle of the bank was dropped by the management. The relevant portion of the chairman s speech was quoted by the Court in the judgment (reproduced later).) When the maintainability of the disciplinary proceedings was challenged at the initial stage in the HC, the single judge refused to grant the relief prayed for by the Chennai office-bearers. The experience shows that the courts at the lower level are eager to grant relief to the managements and slap restrictions on the unions overlooking the SC s ruling in favour of a peaceful protest. In this backdrop the latest HC decision is a welcome blow for the right of the working class in peacefully articulating their grievances through collective actions. It is pertinent to highlight the important observations of the division bench in the case. The first question is: Can unions demonstrate inside the premises? According to the Court a peaceful demonstration inside the campus is protected under Article 19 of the Constitution. The Court said: so long as the demonstration did not disturb public tranquility and the working of the Bank, we do not find any justification to hold that the peaceful demonstration held in front of the Local Head Office by the Officers amounted to misconduct. The HC relied upon the SC s decision in Kameshwar Prasad s case and its own earlier decision in the Indian Bank case. Does holding a demonstration amount to misconduct? The HC s observations are instructive. It says an act which causes a dent in or a damage to the reputation or image or goodwill of the bank to undermine the confidence of people having business or proposed to have business in the institution, is certainly an act of misconduct. But, could holding of a demonstration, per se, amount to a misconduct? The holding of a demonstration is held to be a constitutional right guaranteed under Article 19 of the Constitution of India. so long as the demonstration did not disturb public tranquility and the working of the Bank, we do not find any justification to hold that the peaceful demonstration held in front of the Local Head Office by the Officers amounted to misconduct. A related question was whether the office-bearers committed misconduct in calling for demonstrations and whether they could be charge sheeted for such acts. The HC held that once the association is recognised by the management, participation by the leaders in a protest action cannot be treated as misconduct. It said: Given the fact that the Staff Association is a registered Association and that holding of the post in the Association even by an Officer is not an anathema to holding of the post of a General Manager or an Officer of high order in a Bank, such post in the Union being recognised by the Management itself, in the face of the guaranteed right to hold demonstration as a form of free expression and speech, the imputations are of very generic nature and goes against the very concept of forming a Union as well as holding a peaceful demonstration. We do not find any good ground to accept or hold that there could be any embargo imposed on any employee to voice his/her view on the policy of the employer through a peaceful demonstration and such right cannot be scuttled by naming it misconduct, thereby punishing a staff being a member of the Association. In the background of the disciplinary proceedings for the alleged misconduct and the related domestic enquiry, the question to be examined was whether a court could set aside the proceedings at the initial stage itself. The management s contention was that 4

5 whether there was misconduct was to be ascertained through the enquiry and therefore it would be premature for the court to stall the proceedings. The HC found no merit in this argument as evident from its observation: However, when on the admitted facts, the proceedings appear ex facie discriminatory in character and that there are no specific complaints of misconduct and that the allegations of misconduct flow only from the general provisions regarding the code of conduct in relation to the official status of the appellants, who incidentally held the post of President and General Secretary of the Union, which is recognised by the respondents too, we do not find any ground to reject the case of the appellants at the stage of the charge memo. On the admitted facts that the respondents had dropped the proceedings on the self same charge, this Court feels, this is a fit case for interference at the stage of charge memo itself. The respondents have not shown any exceptional circumstances to accept the reply by those persons to drop the proceedings, particularly in the context of the fact that the demonstration was an All India demonstration by all the officers who were members of the association. Thus, we do not think, there could be better ground than this to disturb the order of the learned single Judge dismissing the writ petitions on the ground of the remedy available on the proceedings of the charge memo issued. It is also pertinent to note the observations of the HC on the conduct of the chairman who justified the discriminatory treatment adopted by the management. It quoted his statement in the judgment: The reason given by the chairman for condoning this (the misconduct of one office bearer), as is evident from his speech dated 8 October 2012, reads as follows: We think this action of the Officers Federation has ruined the image of the Bank and brought humiliation. That is why we decided to charge sheet 28 office-bearers Secretary and President in such of the 14 Circles for penalty that why have you acted in this manner and brought disrepute. Subsequently one charge-sheet has been taken back that was served on the Vice President of Federation because subsequently this gentleman has been nominated to the Central Board of Directors of the Bank and we are deeply committed to officer s representative being on the Board of the Bank and therefore, we decided in order to facilitate smooth functioning we should withdraw the charge-sheet. The HC did not take to this argument kindly and reacted as under: Thus, if for the purpose of making the Vice President of the Association a Director of the Bank, the charges could be dropped and that the participation and other allegations as contained in the statement of misconduct are not a misconduct, we do not know what one would call the present proceedings against the appellant as nothing but one writ with mala fide (emphasis added). Strong indictment, indeed! Conclusions In the backdrop of the ongoing attacks on the collective rights of the working class, the Madras HC judgment opens up a fresh debate on such rights. For the bank officers too, despite being better organised, the decision comes as a relief against an attitude of intolerance of dissent against policies of the managements. 5