Bombay High Court
Maharashtra Electrosmelt Kamgar ... vs Deputy Director (Ir) Ministry Of Labour ... on 20 June, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1 wp3632.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3632 OF 2015
Maharashtra Electrosmelt Kamgar
Union, R.O.H. Colony, Maharashtra
Electrosmelt Ltd., Mul Road,
Chandrapur, District Chandrapur,
through its General Secretary
Shri Chandrashekhar Mahadeorao
Pode. ... Petitioner
- Versus -
1) Deputy Director (IR), Ministry
of Labour and Employment,
Shram Shakti Bhawan,
New Delhi.
2) Central Labour Commissioner
(Central), Ministry of Labour
and Employment, Shram
Shakti Bhawan, New Delhi.
3) Deputy Chief Labour
Commissioner (Central),
Govt. of India, Ministry of
Labour and Employment,
C.G.O. Complex, Block `C'
First Floor, Seminary Hills,
Nagpur - 6.
4) Assistant Labour Commissioner
(Central), Chandrapur, Tahsil
and District Chandrapur.
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5) Chandrapur Ferro Alloy Plant
(Sail) Mazdoor Sangh, House
No. 266, Mukti Colony,
Macchinala, near Durga
Temple, Industrial Estate,
Mul Road, Chandrapur, through
its President.
6) Steel Authority of India Ltd.,
Chandrapur Ferro Alloy Plant,
Mul Road, Chandrapur,
through its Executive Director.
ig ... Respondents
-----------------
Shri M.R. Pillai, Advocate for petitioner.
Smt. M. Chandurkar, Advocate for respondent nos.1
to 4.
Shri B.M. Khan, Advocate for respondent no.5.
Shri S.C. Mehadia, Advocate for respondent no.6.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 20, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Rule, returnable forthwith. Heard finally by consent of learned Counsel for the parties.
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2) Adv. Pillai for petitioner has pointed out that respondent no.6 has not filed any reply.
3) The petition has been filed questioning a note dated 12/5/2015 issued by Deputy Director for conduct of secret ballot election in the establishment of respondent no.6 ig at Chandrapur. Further communication dated 20/5/2015 for said purpose has also been questioned.
4) Adv. Pillai for petitioner submits that as in State of Maharashtra, there is a statute, which regulates recognition of Unions, the Code of Discipline under which that exercise has been undertaken is not applicable. He is relying upon an exception provided in Appendix III of the said Code of Discipline to substantiate his contention. He further submits that the petitioner has not given consent to such election by secret ballot and as per note appearing in first edition of November 1961, such exercise cannot be ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 4 wp3632.15 undertaken. He points out that though Central Government is appropriate Government for respondent no.6, as deduction under Bombay Labour Welfare Act still continues, Bombay Industrial Relations Act, 1946 continues to apply and hence, to that extent, there is statute, which regulates grant of status as Representative ig Union in State of Maharashtra.
Therefore also, according to him, provisions of Code of Discipline do not apply. He is relying upon order dated 2/7/2013 passed by Division Bench of this Court in Writ Petition No.1429/2012 to which one of us (B.P. Dharmadhikari, J.) is party.
5) Adv. Khan appearing for rival Union submits that exercise of statutory function cannot depend upon volition of petitioner as otherwise there would never be any election. He further contends that provisions of Section 2(a) of Industrial Disputes Act, 1947 defining appropriate Government are very clear and as such, provisions of Bombay Industrial Disputes Act, 1946 or ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 5 wp3632.15 The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 cannot apply. He, therefore, submits that exception relied upon by petitioner itself is not attracted in the present matter. He relies upon express language of Code of Discipline to urge that in view of the said provision, order of Division Bench of this Court in Writ Petition No.1429/2012 (supra) is not attracted. He also invites our attention to judgment delivered by the learned Single Judge of this Court to urge that in somewhat similar circumstances for a cement industry, Central Government is found to be appropriate Government.
6) Adv. Mehadia for respondent no.6 adopts arguments of Adv. Khan for respondent no.5. He submits that as provisions of Industrial Disputes Act, 1947 are attracted, no other law can be extended.
7) Smt. Chandurkar, learned Counsel appearing for respondent nos.1 to 4, apart from relying upon ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 6 wp3632.15 reply-affidavit, adopts arguments advanced by Adv. Khan and Adv. Mehadia.
8) The exception on which petitioner has placed reliance appears as part of Appendix III. Appendix III of Code of Discipline contains procedure for verification of membership of Unions for the purpose of recognition under the Code of Discipline. As per this exception, said procedure is not applicable in the States where recognition of Unions is regulated by a statute.
Adv. Pillai for petitioner submits that in State of Maharashtra as also in Gujarat, recognition of trade Unions is regulated by statutes. He further submits that The Bombay Industrial Relations Act, 1946 and The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 are such statutes in State of Maharashtra. However, it is apparent that those statutes do not apply to industries where appropriate Government is Central Government.
Thus, in State of Maharashtra, there is no statute, ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 7 wp3632.15 which regulates recognition of Unions in industries like respondent no.6. As such, we find that exception on which Adv. Pillai has placed reliance is not attracted here.
9) We find it appropriate to reproduce the
relevant provisions
ig containing requirement of
participation on voluntary basis for proper appraisal.
"First Edition :
The Code of Discipline lays down certain criteria for recognition of unions by the managements on a voluntary basis. These criteria have been further clarified by the Indian Labour Conference. A procedure for verification of membership of unions, to determine their representative character, has also been approved by the Standing Labour Committee. For the convenience of unions, managements and verification Officers all the decisions so far taken on the subject have been brought together in this brochure in a classified form. As recognition is governed by statutes in certain States, the relevant legal provisions have been given in the appendices to this brochure, for the benefit of these concerned."
It is apparent from the note below Second Edition or Third Edition or Fourth Edition that the contents thereof ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 8 wp3632.15 may not be laying down substantive legal provision.
However, language employed in First Edition stipulates that the Code of Discipline lays down certain criteria for recognition of Unions by the Managements on a voluntary basis. Whether these are comments of person, who has put his note to First Edition, or are substantive legal ig provisions, therefore, is a fundamental dispute. From its contents, we find it difficult to accept it as a substantive legal provision.
Perusal of similar Notes to further editions is also conducive to same conclusion.
10) In any case it is open to petitioner to participate in such recognition drive. Nobody compels petitioner to become part thereof and it is always open to petitioner to keep out of it. However, benefit of Code of Discipline and scheme for recognition shall in that event be not available to petitioner and it will be extended to some other Union, which participates in that drive and succeeds. The petitioner cannot by ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 9 wp3632.15 withholding its consent prevent the entire exercise of verification. Such a course would be derogatory of rights of other Unions.
11) As provisions of Section 2(a) of Industrial Disputes Act, 1947 are very clear, Central Government being appropriate Government, provisions of Bombay Industrial Relations Act, 1946 do not apply to respondent no.6. Merely because a welfare measure of deduction towards welfare fund being carried under Bombay Welfare Labour Act is continuing, that would not mean that provisions of Bombay Industrial Relations Act, 1946 apply to respondent no.6.
12) The order dated 2/7/2013 passed by Division Bench of this Court in Writ Petition No. 1429/2012 takes a particular view after looking into the language used there in Code of Discipline. That language has not been pointed out to us. Here the language in case of respondent no.6 is unambiguous. The verification of ::: Uploaded on - 23/06/2016 ::: Downloaded on - 30/07/2016 06:01:39 ::: 10 wp3632.15 membership by secret ballot is not prohibited by said Code of Discipline.
13) We, therefore, find no case made out by the petitioner warranting interference. The writ petition is accordingly dismissed. Rule is discharged. No costs.
14) At this stage, Adv. Pillai for petitioner seeks continuation of interim order for further period of eight weeks. Request is being opposed by other Counsel for the parties. However, we find that interim order is operating since 30/6/2015. Hence, we continue it for a period of eight weeks. It shall cease to operate automatically thereafter.
JUDGE JUDGE
khj
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