Madhya Pradesh High Court
Kymore Cement Majdoor Congress (Iniuc) vs Registrar on 24 August, 2011
W.P. No.12362.11
HIGH COURT OF MADHYA PRADESH: JABALPUR
Present : Hon'ble Shri Justice Sanjay Yadav.
WRIT PETITION NO.12362 OF 2011
Kymore Cement Majdoor Congress (INTUC)
Vs.
Registrar Office of Registrar Trade Unions
Bhopal and four others.
Smt. Indira Nair, learned senior counsel with Shri
Rajesh Pohankar, learned counsel for the petitioner in
W. P. No. 12362/2011 and Shri Kuldeep Bhargava,
learned counsel for the petitioner in W. P. No.
12388/2011.
Shri Akash Choudhary, learned counsel for the
respondents.
ORDER
Post for 24-08-2011.
JUDGE 23-08-2011 W.P. No.12362.11 HIGH COURT OF MADHYA PRADESH: JABALPUR Present : Hon'ble Shri Justice Sanjay Yadav.
WRIT PETITION NO.12362 OF 2011 Kymore Cement Majdoor Congress (INTUC) Vs. Registrar Office of Registrar Trade Unions Bhopal and four others.
Smt. Indira Nair, learned senior counsel with Shri Rajesh Pohankar, learned counsel for the petitioner in W. P. No. 12362/2011 and Shri Kuldeep Bhargava, learned counsel for the petitioner in W. P. No. 12388/2011.
Shri Akash Choudhary, learned counsel for the respondents.
ORDER (24.08.2011) Order passed herein shall lead to final disposal of writ petitions, viz, W. P. No. 12362/2011 and W. P. No. 12388/2011 as both these writ petitions are directed against the same order, i.e, order dated 15.7.2011 passed by Registrar, Trade Unions, Madhya Pradesh.
2. As per petitioner in W.P. No.12362/2011 it is a registered trade Union registered under Trade Unions Act, 1926 bearing registration No.125 dated 2.8.1954, as also affiliated with Indian National Trade Union Congress. It being the representative Union for Cement W.P. No.12362.11 (2) Industry in the local area of Revenue District Katni, has the following of more than 90% of workers working in Cement Industry. It is stated that as on 1.3.2011, the total strength of employees in ACC Plant/Factory is 520 (275 monthly paid and 245 daily paid), out of which 424 employees are its members.
3. As per petitioner in W.P. No. 12388/2011 it is a registered Union for lime stone mines, situated at Bavangawan and Mehgaon villages owned by the ACC Ltd., having its registration No. 2535/1980 dated 23/8/1980.
4. Secret ballot for physical verification of the membership of the Union to ascertain as to who would be the approved Union to be placed in the list as ordered by Registrar, Trade Unions, Madhya Pradesh, on 15-07-2011, is, the cause giving rise to present set of petitions.
5. Provisions contained under Chapter IIIA : Trade Union Act, 1926, empowers the Registrar to maintain in such from as may be prescribed, a list of approved Unions. Section 28-A casts duty on the Registrar to maintain such a list of approved Unions. Section 28-C lays down the provisions regarding application for and entry in the approved list. It stipulates :
"28C. Application for and entry in the approved list.-(1) Any representative union or where there is no representative union any registered Trade Union in any industry other than an industry for which the Central W.P. No.12362.11 (3) Government is the appropriate Government within the meaning of sub-clause (I) of clause (a) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947), may apply in the prescribed form for being entered in the approved list.
(2) On receipt of such application the Registrar shall hold such enquiry as is prescribed and if he is satisfied that such union fulfills the conditions necessary for its being entered in the approved list, he shall enter the name of such union in the approved list and shall issue a certificate of its entry in such form as may be prescribed. Provided that -
(i) where two or more unions fulfilling the conditions necessary for registration specified in section 28D apply for their entry in the approved list, the Union which has the largest membership of the employees employed in the industry, shall alone be entered in the approved list;
(ii) the Registrar shall not enter any union in the approved list, if he is satisfied for reasons to be recorded in writing that the application for entry is not made bona fide in the interests of employees but is made in the interests of the employer.
Explanation - For the purposes of this section, the expression "Representative Union" shall have the meaning assigned to it in the Madhya Pradesh Industrial Relations Act, 1960 (Madhya Pradesh Act 27 of 1960)."
6. Section 28D lays down the conditions precedent for an entry in the approved list. It stipulates :-
28D. Conditions of entry in the approved list.--(1) No union shall be entered in the approved list under this Act, unless (i) the W.P. No.12362.11 (4) union has for the whole of the period of three months next preceding the date of application under section 28C a membership of not less than fifteen per cent. of the employees employed in the industry in that local area;
(ii) the constitution of the union shall be such as may be provided by or under this Act, and in particular, shall require that-
(a) the subscription payable for membership shall be not less than four annas a month or such other sum as may be fixed by the State Government under sub-section (2) and that the accounts of the union shall be audited at least once in each financial year by an auditor appointed or approved by the State Government.
(b) the executive of the union shall meet at least once in three months and that all resolutions passed by the executive or general body shall be recorded in a minute book; and
(c) the union shall not sanction a strike as long as conciliation and arbitration are available and shall not declare a strike until a ballot is taken and the majority of the members of the union vote in favour of the strike.
(2) The State Government may, by notification, direct that in the case of any registered trade union of workmen or employees engaged in any employment specified in the Schedule to the Minimum Wages Act, 1948, the membership subscription may be less than four annas for such period as may be specified therein.
(3) Any registered Trade Union complying with the conditions specified in sub-
section (1), and having a larger W.P. No.12362.11 (5) membership in an industry in a local area than an approved union for such industry shall on an application in that behalf be entered in the approved list in place of such approved union by the Registrar after holding such enquiry as he deems fit."
7. The nature of enquiry sought to be made by the Registrar is as prescribed under Regulation 24 of the Madhya Pradesh Trade Union Regulation 1961. It stipulates :
"24. The nature of enquiry by Registrar.-
(1) On receipt of the application for being entered into the list of approved unions, the Registrar, if prima facie satisfied that the union deserves to be entered in the list of approved unions, shall cause to be put up a notice on the premises of all undertakings in the industry in that local area at such conspicuous places, as he may deem fit, inviting objections within one month against the entry of the union in the approved list.
(2) If no objections are received within the time mentioned in the notice, the Registrar, after making such enquiry, as he may deem fit, if he is satisfied that the applicant union fulfills the conditions necessary for being entered in the approved list in accordance with sub-
section (1) of section 28-D he shall enter the name of such union in the approved list maintained under section 28-A. (3) If any objection is received from any person within the time mentioned in the notice referred to in sub-regulation (1), the Registrar shall, after giving him an opportunity of being heard and making W.P. No.12362.11 (6) such further enquiry as he may deem fit, if he is satisfied that the conditions mentioned in sub-section (1) of section 28- D are fulfilled, he shall enter the name of such union in the approved list maintained under section 28-A."
8. The petitioners in W. P. No. 12388/2011 calls in question the very jurisdiction of the Registrar, Trade Unions, Madhya Pradesh in causing an enquiry to ascertain the strength of respective Union for the purpose of its being kept in the list of 'approved Union'. The petitioners in W. P. No. 12362/2011 questions the order on an additional ground that having been governed by the Code of Discipline and recognized as such, taking recourse to a secret Ballot to ascertain the strength of the Unions for the purpose of the approved list, is contrary to the established norms, as well as to the very code of Discipline which acknowledges that it is on actual physical verification that a decision has to be arrived at as to which Union deserves to be the representative Union. In other words, the approved Union would be a Union which draws maximum coverage to represent the large interest of workers.
9. As to the first aspect regarding jurisdiction, it is being urged that the ACC Ltd besides engaged in manufacturing cement also owns captive mines at villages Bavangawan and Mehgaon wherefrom lime stone is extracted for its being used as raw material for manufacturing cement at a factory which is situated at a different location.
W.P. No.12362.11 (7)
10. Whereas, the membership of petitioner in writ petition No. 12388/2011 is comprised of the workers who are engaged in the mines. The membership of respondents no. 2 and 3 at whose instance, mode of secret ballot has been resorted at for physical verification are jointly of those who are engaged in the mines as well the offices attached with the mines and of workers engaged in cement manufacturing industry.
11. Reliance having been placed on the expression "appropriate Government" as it appears under Section 2 (a) (i) of the Industrial Dispute Act, 1947 whereunder for the industrial dispute relating to mine, the Central Government is the "appropriate Government", and on the definition of mine under the mines Act 1952. It is contended by learned counsel for the petitioner that, the mine being an "industry" not governed by the M. P. Industrial Relations Act, 1960 (as defixed under Section 28HH (a) of the Trade Unions Act 1926), the Registrar, Trade Union, Madhya Pradesh has no jurisdiction to cause an enquiry in respect of membership of the Union which operates in an area where the mine is situated. Similar submissions have been made in respect of the Cement Industry, that the same having been taken out from the purview of the M.P.I.R Act, 1960 vide notification N. F.6-5-07-A-XVI dated 14th August, 2007 the Registrar would not be empowered to exercise his jurisdiction.
W.P. No.12362.11 (8)
12. Admittedly, as per the provisions contained under Section 2 (a) (i) of the Industrial Dispute Act, 1947 for an industrial dispute in relation to mine, the Central Government would be the appropriate Government. The expression "mine" though not defined under the Industrial Dispute Act 1947 finds its meaning in the Mines Act ,1952 under Section 2(i) (j) that:
"Mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes -
(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oil fields;
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial rope-
ways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine;
(vii) all protective works being carried out in or adjacent to a mine;
W.P. No.12362.11 (9)
(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;
(ix) all power stations,
transformer sub-stations,
convertor stations, rectifier
stations and accumulator, storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;
(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;
(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting dressing or preparation for sale of minerals or of coke is being carried on;"
13. Pertinent it is to note that, in the Mines Act 1952, expression "office of the mine" has been separately defined under section 2 (1) (k) as "an office at the surface of the mine concerned".
14. Under the Trade Union Act, 1926 Registrar as per Chapter III A exercises his powers in respect of "industry" as defined under Section 28 HH(a) which W.P. No.12362.11 (10) stipulates:"(a) industry" shall have the meaning assigned to that expression in the Madhya Pradesh Industrial Relations Act, 1960 (27 of 1960)".
15. Under the Madhya Pradesh Industrial Relation Act 1960 Section 1(3) stipulates:
"(3) This Section and Section 112 shall come into force at once and the State Government may, by notification, bring all or any of the remaining provisions of this Act into force in respect of-
(a) any or all industries , or
(b) undertakings in any industry wherein the number of employees on any day during twelve months preceding or on the date of the notification or on any day thereafter, was or is more than such number as may be specified in such notification;
on such date as may be specified therein".
16. In exercise of the powers conferred by sub-section (3) of Section 1 of the Act of 1960 the State Government issued notification in following terms:
"No. 9952-XIV, dated 31 December, 1960. In exercise of the powers conferred by sub- section (3) of section 1 of the Madhya Pradesh Industrial Relations Act, 1960 (No. 27 of 1960) the State Government hereby directs that all the provisions of the said Act other than sections 1 and 112 thereof shall come into force on the 31st December, 1960, in respect of undertaking in the industries specified in the schedule below wherein the number of employees on any date during 12 months preceding or on the date of this notification or any day thereafter was or is more than one hundred.
SCHEDULE
1. Textile including cotton, silk, 11. Printing Presses. artificial silk, staple fibre, jute and carpet.
2. Iron and Steel 12. Paper and Straw Board.
W.P. No.12362.11 (11)
3. Electrical goods 13. Asbestos Cement
4. Sugar 14. Shellac
5. Rice mills 15. Public Motor Transport
6. Oil mills 16 Engineering
7. Cement 17. Floor mills
8. Potteries 18. Biscuit and Confectionery
9. Lime industry 19. Glass
10. Electricity generation and 20. Starch Distribution 21. Vegetable oil
22. Rubber
17. Mining Industry was thus not included in the schedule. Later on, vide notification dated 14-8-2007 the Cement Industry was also excluded from the Schedule. The notification is in the following terms :
"Notification No. F. 6-5-07-A-XVI dated the 14th August, 2007.- In exercise of the powers conferred by sub-section (4) of Section 1 of the Madhya Pradesh Industrial Relations Act, 1960 (No. 27 of 1960), the State Government hereby, directs that the provision of said Act shall not apply to the industries specified in the Schedule below, however, the said omission shall not affect the cases pending before the Labour Court, Industrial Court or before any other Court of Law and such cases shall be disposed of or proceeded with as such items had not been omitted, namely:-
Schedule S. No. Name of Industries (1) (2)
1. Textile, including cotton, silk, artificial silk, staple fibre, jute and carpet.
2. Iron and Steel.
3. Electrical goods.
4. Sugar and its by products, including,-
(i) the growing of sugarcane on farms belonging to or attached to concern engaged in the manufacture of sugar, and
(ii) all agricultural and industrial operations connected with the growing of sugarcane of the said manufacture.
W.P. No.12362.11 (12)
5. Cement.
6. Electricity generation transmission and distribution.
7. Public Motor Transport.
8. Engineering including manufacture of Motor Vehicle.
9. Potteries including refractory goods, fire bricks, sanitary wares, insulators, tiles, stone, ware pipes, furnace lining bricks and other ceramic goods.
10. Chemical and chemical products industry.
11. Leather and tanneries, including Leather Products.
This Notification shall come into force from the date of its publication in the official Gazette.
[Published in M. P. Rajpatra Part I dated 17-8-2007 Page 2137]"
18. The point is whether when the provisions, viz, Section 2(a) (i) of the Industrial Disputes Act, 1947 Section 28C (l) and 28HH(a) of the Trade Unions Act, 1926 and Section 1(3) of the Act of 1960 and the notifications issued thereunder are read together in context to the issue as crops up in the case at hand as to whether when a mining industry and the cement industry is not governed by the provisions of the M.P.I.R. Act 1960, the Registrar, Trade Unions , can invoke his powers under Chapter III A of the Act of 1926.
19. Under Sub-Section (1) of Section 28 C of the Act of 1926, any representative Union or where there is no representative Union any registered Trade Union in any industry other than an industry for which the Central Government is the appropriate Government within the meaning of sub-clause (I) of clause (a) of W.P. No.12362.11 (13) section 2 of the Industrial Disputes Act of 1947 may apply in the prescribed form for being entered in the approved list.
20. As already observed, the expression "industry"
which appear in sub-section (1) of Section 28 C of the Act of 1926 find its meaning under Section 28HH(a), the necessary corollary would be that, the representative Union or the registered trade Union for their placement in the list of approved union under section 28 A of 1926 Act must be operative in an industry governed by the Madhya Pradesh Industrial Relations Act, 1960. In absence whereof, in the considered opinion of this Court, the provisions of Chapter IIIA are not attracted.
21. Though vide impugned order the Registrar observed that "As per provisions under section 28-C of Trade Unions Act, 1926, Lime Stone Mines is not a separate institution for ACC Ltd. Kymore Cement Works. Since it is a department and captive mines of ACC Ltd. Kymore Cement Works only, as informed by the manager, therefore the entire control, supervision and management of the mines is made only by Kymore Cement Works and its owner is the same. It is not a separate institution. It was informed by the management on inquiry that administration of the factory and mines is one and the same, and if necessary workers are mutually transferred from factory to mines or mines to factory. Originally, ACC Ltd. deals with production of cement W.P. No.12362.11 (14) which requires lime stones as a raw material. Under the Industrial Disputes Act, 1947 lime stone mines are not covered by controlled industry. It is not even undertaking of central government. Therefore, in this reference, Central Government can not be held as appropriate government under sub-clause (1) of Clause- A of Section 2 of the Industrial Disputes Act, 1947."
22. The Registrar, however, fails to take into the consideration that the extent of exercise of power regarding maintenance of list of approved union is to be within the four corners of Chapter III A i.e. in respect of the 'industry' covered by section 28HH(a) of the Act of 1926.
23. It can be argued that the 'industry' as defined under section 2 (19) of the M.P.I.R. Act, 1960 means :
"(a) any business, trade, manufacture, undertaking or calling of employers; (b) any calling, service, employment, handicraft or industrial occupation or a vocation of employees; and includes -(i) agriculture and agricultural operations ; (ii) any branch of an industry or group of industries which the State Govt. may , by notification, declare to be an industry for the purpose of this Act" is vide enough to bring within its fold the mining and cement. However, it is not to be so, because these two industries in question are expressly excluded from the ambit of the M.P.I.R. Act, 1960. With their exclusion, the provision of M. P. I. R. Act, 1960 and that W.P. No.12362.11 (15) of Chapter IIIA of Trade Unions Act, 1926 have no applicability in respect of these industries.
24. In Ballarpur Collieries Co. v. State Industrial Court, Nagpur and others : AIR 1966 S.C. 925, it was observed :
"We see no difference between the words "mining industry" and "industry of mines", for they mean the same thing, namely, the industry which is concerned with mines. If therefore the notification exempted the industry of mines or the mining industry it cannot be said that it merely exempted that part of the said industry of mines or mining industry which consisted of raising coal at the colliery and did not include the head office thereof. As we have already indicated, the High Court has said that "it is not disputed that the head office is a part of integrated activity of the petitioner company which carries on the business of producing coal and its sale and supply to its various customers". Therefore, when the industry of mines or the mining industry was exempted from the operation of the Act, the exemption applied not only to that part of the industry which consisted of raising coal at the colliery but also to that part of it which consisted in the sale of coal and its supply to customers and would thus include the head office also."
25. In S.K. Majdoor Sangh v. Hindustan Steel Ltd. : 1973 J.L.J. 376 while answering the formulation (on a difference of opinion between W.P. No.12362.11 (16) Hon'ble the Chief Justice and Hon'ble Tare, J.) as to "whether the Steel Workers Union, Bhilai-a represented union recognized under the State Act, could under the relevant law applicable to the instant case represent the members of the Common Cadre Pool Staff posted at the surface of the mines by resorting to the provisions of the Madhya Pradesh Industrial Relations Act, 1960 or whether the question of representation is governed by section 36 of the (Central) Industrial Relations Act, 1947, Hon'ble G. P. Singh, J.(as he then was) observed :-
"20. Now, having regard to the limited meaning of Iron and Steel Industry as specified in the notification the activities of the company fall under two divisions :
(1) Manufacture and production of Iron-steel and other operations connected with it, i.e. Iron and Steel Industry governed by the State Act, and (2) Extraction of minerals and operations connected with it, i.e. Mining Industry governed by the Central Act. This brings us to the second question whether the Common Cadre Personnel posted at the site of the mines are employed in Iron and Steel Industry or in Mining Industry. In this connection it is pointed out by the Management that the Common Cadre Staff posted at the different mines of the company consists of the staff of various departments of the company such as Medical and Public Health, W.P. No.12362.11 (17) Education, Stores, Construction, Security and Fire Brigade, the Ministerial staff etc., that these employees are under the control of the heads of departments of the company at Bhilai, that they are transferable from the site of the mines to the Steel Plant at Bhilai, and that for purposes of seniority and promotions they are graded with other Common Cadre Staff of the company. These incidents of the Common Cadre Personnel arise because the Steel Plant and the mines are owned by the same employer and an employee whether posted at Bhilai or at the mines is employed under the same employer.
These incidents, however, do not answer the question whether the employees of this cadre while posted at the mines are employed in Iron and Steel Industry or in Mining Industry of the company.
The expression "employed in any industry" which occurs in the definition of "employee" in the State Act and "workmen" in the Central Act has been construed by the Supreme Court to include persons employed in operations incidental to the industry; see J. K. Cotton Sp and Wvg. Mills Co. v. L.A.Tribunal of India [1]. The employees of the Common Cadre Personnel, whether at Bhilai or at the mines, are not directly engaged either in the manufacture of Iron and Steel or in the extraction of the minerals. Their work is incidental. While posted at Bhilai they are employed in operations incidental to Iron and W.P. No.12362.11 (18) Steel Industry and when posted at the mines they are employed in operations incidental to Mining Industry. For example a Clerk who works in the Factories office of Bhilai Steel Plant does clerical work incidental to the Iron and Steel Industry; whereas, if the same Clerk is transferred to the offices of the Mines, the clerical work done by him is incidental to Mining Industry. Similar is the position with regard to the personnel of other departments of the Common Cadre. The members of the Common Cadre Staff while posted at the Mines do the work incidental to the Mining Industry and must be held to be employed in the said Industry.
21. Reference was made by learned counsel for the management to the definition of the expression "employed in a mine" in the Mines Act 1952, and it was submitted that the Common Cadre Personnel do not fall within that definition. Reliance was also placed on the case of Serajuddin and Co. v. Workmen (2). The expression "employed in a mine"
has a narrow content than the expression "employed in a Mining Industry", therefore, the definition of the former expression in the Mine Act has no relevance in these petition. Serajuddin's case was concerned with the expression "Industrial Dispute concerning a Mine" and it was held that an industrial dispute relating to the employees working in the head office was the appropriate government for making a reference W.P. No.12362.11 (19) under Section 2(a) of the Central Act. This case again is not relevant to the point arising in the present case where the question to be decided is not whether the impugned settlement related to a dispute "concerning the mines" but whether the dispute related to workmen employed in mining industry.
The case more in point is Ballarpur Collieries v. Industrial Court (3) where it was held distinguishing Serajuddin's case that Head Office of a Colliery was included within mining industries. Similarly in J.K. Cotton Spg. & Wvg.
Mills Co's. case (1) which has already been noticed Malis employed by the Mills to look after the garden of the Bungalows occupied by its officers were held to be engaged in operations incidentally connected with the industry carried on by the Mills thus falling within the definition of "workmen" in the Central Act. These cases go to show that simply because the members of the Common Cadre Staff at the mines are not directly engaged in mining operations, it cannot be said that they are not engaged in Mining Industry. The very fact that while posted at the mines they receive mining allowances goes to show that their work is incidental to Mining Industry and they are employed in that industry.
23. On the finding that the Common Cadre Staff at the mines is employed in Mining Industry and not in the Industry of Iron and Steel, it logically follows that the State Act is W.P. No.12362.11 (20) inapplicable to them and the Management should have adopted the procedure and the machinery of the Central Act for arriving at a settlement with these workmen. Instead of issuing a notice of change under section 31 of the State Act to a representative Union of employees the notice should have been issued under section 9-A of the Central Act to all the Trade Unions representing the workmen, for the Central Act does not recognize any representative Union with preferential right of representation. Therefore, the settlement arrived at by the Management under the State Act with the Steel Workers Union alone as a representative Union is invalid. For these reasons, I agree with the conclusion of Hon'ble Tare, J. that the petitioners be allowed and the settlement be quashed."
26. Having thus considered this Court is of the opinion that the Registrar, Trade Unions, Madhya Pradesh had no jurisdiction to invoke the provisions of Chapter IIIA of the Trade Unions Act, 1926 in respect of the industry viz., the mining industry and the cement industry, which are governed by the provisions of Industrial Disputes Act, 1947. The impugned order dated 15-07-2011 is, therefore, liable to be and is hereby quashed.
27. The applicability of code of discipline and W.P. No.12362.11 (21) the procedure prescribed thereunder for determination of the representative Union on the basis of actual physical verification of membership was being submitted during course of hearing; however, since the petitions are confined only to the order dated 15-07-2011 and no other relief has been sought in the petition, the said aspect has not been gone into in the present petition. It is, therefore, for the Unions and the management to decide the mode for determination of a representative Union.
28. The petition is allowed to the extent above. No costs.
(SANJAY YADAV) JUDGE SC