Gujarat High Court
Navjagrut Labour Union And Anr. vs Ahmedabad Electricity Co. Ltd. And Anr. on 6 July, 2007
Equivalent citations: (2008)IILLJ175GUJ
Author: K.A. Puj
Bench: A.M. Kapadia, K.A. Puj
JUDGMENT K.A. Puj, J.
1. The applicant - third party, namely, Navjagrut Labour Union, a Regd. Union under the Trade Unions Act, 1926 represented by its General Secretary Shri Manoj R. Rajput, who was duly authorised by 106 employees, has filed this application seeking permission of this Court to be joined as respondent No. 3 in Letters Patent Appeal No. 1164/1998 and also in Special Civil Application No. 8030/1997.
2. The application was opposed by the opponent No. 1 - original appellant - original petitioner i.e. Ahmedabad Electricity Company Limited. An affidavit-in-reply as well as written submissions were filed during the course of hearing. Similarly, application is also opposed by opponent No. 2 - orig. respondent No. 1 i.e. Electricity Mazdoor Sabha, a representative, Union. An affidavit-in-reply is filed on March 29, 2007. The applicant has also filed an affidavit on March 15, 2007 along with the affidavits of more than 200 employees stating that they have left the Electricity Mazdoor. Sabha and have withdrawn their authority to proceed with the present matter and/or to settle the same on their behalf. The applicant has also filed written submissions during the course of hearing.
3. Heard T.R. Mishra, learned advocate appearing for the applicant and Sudhir I. Nanavati, learned senior counsel for opponent No. 1 and A. K. Clerk, learned advocate appearing for the opponent No. 2.
4. It is the case of the applicant that the original dispute was espoused by the opponent No. 2 which was the representative Union functioning in the establishment of Ahmedabad Electricity Company. The dispute was with regard to regularisation of 360 employees and the said reference was registered as Reference (IC) No. 133/1992. The award was passed by the Industrial Court which came to be challenged by the opponent No. 1 Company by filing Special Civil Application No. 8030/1997. The Learned single Judge upheld the award which is under challenge in Letters Patent Appeal No. 1164/1998.
5. During the pendency of the reference, Out of 360 workmen, only 238 workmen remained to get the benefit of the award. Others have either left or expired. Out of 238 employees, who are presently working, 200 employees have left the original espousing Union and filed individual affidavit that they were not the members of the Electricity Mazdoor Sabha and that they have joined the applicant Union i.e. Navjagrut Labour Union.
6. T.R. Mishra, learned advocate appearing for the applicant has submitted that the opponent No. 1 in the present application has filed detailed affidavit opposing the said application filed by the applicant Union relying upon certain settlement and that the Company has been highlighting to have agreed with the representative Union for payment of Rs. 132 Crores. Copy of the said settlement has also been shown to this Court. He has further submitted that the opponent No. 1 Company has not disclosed the fact that the said amount of Rs. 132 Crores has not been paid to any of the workmen involved in the present proceeding. Whatever benefit has been given, it is given to the permanent employees whereas the employees in the present proceeding are the contract labour working for more than 30 years and they have not been paid anything.
7. Mishra has further submitted that the sole question that needs to be determined is whether, after repeal of the provisions of representative character from the Bombay Industrial Relations Act ('BIR Act' for short) whether the establishment still continues to be governed by the provisions of the BIR Act in relation to Ahmedabad Electricity Company. If the contention of the opponent No. 1 Company is accepted that the establishment even after the issue of Notification i.e. April 19, 2005 continues to be governed under the provisions of BIR Act, the repeal Act becomes redundant. Section 7 of the General Clauses Act cannot be interpreted to mean that the establishment even after repeal Act continues to be governed by the provisions of BIR Act. So far as Section 7 of the General Clauses Act is concerned, it protects the order passed by the competent Court of law either prior to issue of Notification or immediately after issue of Notification or the orders which are in pipeline or the proceedings which are pending. Section 7 is a saving clause and it saves the proceedings which are either concluded or pending or the proceeding continues after the issue of Notification. Mishra has relied on the decision of Calcutta High Court in the case of Ramesh Ch. Bhattachariya and Anr. v. Nagendra N. Mallick wherein it is held that where an enactment is repealed unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder nor will it affect any legal proceeding or remedy in respect of any right, privilege or liability or forfeiture under the Repealed Act.
8. Mishra has further relied on the decision of the Bombay High Court in the case of Sadasheo Jagannath Barapatre v. Hemaji Hiraman Bakde wherein it is held that normally effect of Repealing statute is to obliterate it from the Statute Book as completely as it has never been passed. It must be considered as a law that never existed. But to this rule an exception is engrafted by the provisions of Section 6 of the General Clauses Act.
9. Mishra has further relied on the decision of the Full Bench of the Andhra Pradesh High Court in the case of Waheed Hasan Khan v. State of Hyderabad AIR 1954 Hyd. 204 wherein it is held that where an Act is repealed, it is as if it has never existed except with reference to some part as are saved by the repealing statute. Mishra has further relied on the decisions rendered by the Hon'ble Supreme Court in the case of Newspapers Limited, Allahabad v. State Industrial Tribunal, Uttar Pardesh and Ors. 1960-II-LLJ-37 Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Asson. etc. v. Union of India and Ors. & Indian Tobacco Co. Ltd., v. Commercial Tax Officer, Bhavanipore and Ors. .
10. Based on the aforesaid decisions, Mishra has submitted that the meaning of the proceeding as mentioned in Section 7 of the General Clauses Act would mean proceeding under BIR Act before Labour Court and Appellate Court, namely, Industrial Court under the scheme of BIR Act. Proceeding before High Court under Article 227 of the Constitution of India is not a continuous proceeding as when the award/order of any Labour Court or Industrial Court is challenged in the High Court, the High Court exercises supervisory jurisdiction under Article 227 of the Constitution of India and, therefore, at no stretch of imagination, proceeding under Article 227 of the Constitution of India before the Learned single Judge can be interpreted as continuous proceeding from Labour Court or Industrial Court or High Court.
11. Mishra has further submitted that all the workmen involved in the present petition have personally filed the affidavits that they have no trust in Electricity Mazdoor Sabha and proceedings are now governed by the provisions of Industrial Disputes Act, 1947 and not under the BIR Act after the issue of Notification of 2005. He has, therefore, submitted that the present Civil Application is required to be allowed to enable the workmen to represent their case before this Court.
12. Reliance is placed on the decision of the Hon'ble Supreme Court in the case of Newspapers Limited, Allahabad v. State, Industrial Tribunal, Uttar Pardesh and Ors. (supra), wherein it is held that it is not necessary that a registered body sponsor a workman's case to make it an industrial dispute. Once it is shown that a body of workmen, either acting, through their Union or otherwise, had' sponsored a workman's case it becomes an industrial dispute.
13. Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Asson. etc. v. Union of India and Ors. (supra), wherein it is held that whether the petitioners belong to a recognized Union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. The Court observed that its current social jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'. Indeed, little Indians in large number seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy.
14. Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Indian Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore and Ors. (supra) wherein it is held that the general rule of construction is that the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute. Again, such intention may be explicit or implicit. It is now well settled that "repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an act is repealed, it must be considered (except as to transactions past and closed) as if it had never existed.
15. Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Fertilizer Corporation Kamgar Union (Regd.) Sindri and Ors. v. Union of India and Ors. wherein it is held that the maintainability of a writ petition which is co-related to the existence and violation of a fundamental right is not always to be confused with the locus to bring a transfer under Article 32. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution.
16. Lastly, Mishra submitted that even otherwise the Letters Patent Appeal against the judgment and order of the Learned single Judge confirming the order of the Labour Court as well as Industrial Court is not maintainable. He relied on the decision of the Hon'ble Supreme Court in the unreported judgment in petition for Special Leave to Appeal (C) No. 20351/2006 wherein it is held that the Letters Patent Appeal against the order passed by the Learned single Judge is not maintainable and special leave petition was dismissed on the ground that the Letters Patent Appeal is not maintainable. He has, therefore, submitted that the present Letters Patent Appeal itself is required to be dismissed on the ground of its non-maintainability.
17. Sudhir I. Nanavati, learned senior counsel appearing for opponent No. 1 Company, before dealing with the main submissions, contentions and allegations of the applicant Union in the present application, has raised certain preliminary objections against the maintainability of the present application. He has submitted that the applicant Union is not a representative and approved Union under the provisions of BIR Act. As such, the applicant Union has no locus standi to appear in the present proceedings and make any submission on behalf of the concerned workmen workers etc. He has further submitted that the Electricity Mazdoor Sabha - opponent No. 2 which was a representative approved Union under the provisions of BIR Act, had raised an industrial dispute on behalf of the Contractor's workers and the said Union is still enjoying the status of representative and approved Union. Opponent No. 2 Union is already a party in the main proceedings of Letters Patent Appeal and hence, the applicant Union cannot appear in the main proceedings by way of filing the present Civil Application and act as a representative Union as per the judgments of this Court as well as the Hon'ble Supreme Court of India and hence, the present Civil Application deserves to be rejected in limine. There are disputed questions of fact involved in the present application which cannot be decided on facts of this Court. The said issues can be proved by leading oral as well as documentary evidence before the appropriate authorities/Courts and as such, the present Civil Application is legally not tenable.
18. Nanavati has further submitted that the opponent No. 2 Union had given notice of change under the provisions of Section 42(2) of the BIR Act, 1946 on July 31, 1992 demanding inter alia that since 360 workers enlisted in the Annexure to the said Notice of Change are working in the opponent No. 1 Company since long, they should be made permanent and that they should be categorized and paid wages in terms of the Agreements arrived at with the representative Union. Likewise, the wages being paid to the permanent employees of the opponent No. 1 Company. Since no agreement could be arrived at between the parties regarding the said demand put up by the representative Union, the representative Union got a Reference made to the Industrial Court, Ahmedabad under the provisions of Section 73-A of the BIR Act, which reference was numbered as Reference (IC) No. 133/1992. The Industrial Court, Ahmedabad vide order dated September 20, 1997 directed the opponent No. 1 Company to make around 360 workers as permanent despite the fact that even as admitted by representative Union that most of them were not the workers employed by the opponent No. 1 Company but were being employed by the various Contractors doing miscellaneous jobs at Power stations. The order passed by the Industrial Court, Ahmedabad dated September 20,1997 was challenged by the opponent No. 1 Company before this Court being Special Civil Application No. 8030/1997. The representative Union also challenged the said order dated September 20, 1997 before this Court being Special Civil Application No. 5807/1998. This Court vide its common order dated September 2, 1998 disposed of both the petitions. The opponent No. 1 Company Challenged the said order dated September 2, 1998 passed by the Learned single Judge of this Court by preferring Letters Patent Appeal No. 1164/1998. The said appeal was admitted on February 10, 1999 and the operation and execution of the award of the Industrial Court dated September 20, 1997 and the judgment in Special Civil Application No. 8030/1997 was stayed till the final disposal of Letters Patent Appeal No. 1164/1998.
19. During the pendency of the present proceedings, the opponent No. 1 Company and the opponent No. 2 Union have arrived at comprehensive settlement on June 27, 2006 to resolve all outstanding disputes and the said settlement would be valid for the period from October 1, 1992 till March 31, 2009. It has also been specifically stipulated in the said settlement that the pending matters including the present Letters Patent Appeal have been mutually agreed to be discussed between the parties for expeditious resolution. The opponent No. 1 Company and the opponent No. 2 have settled several issues after the settlement dated June 27, 2006 and the discussion for amicably resolving the dispute/issues involved in the present appeal had also taken place.
20. During the pendency of the present appeal, the Government of Gujarat amended the Act whereby in Section 2, after Sub-section (5), the following has been added, namely:
(6) The State Government may, by Notification in the Official Gazette, direct that the provisions of this Act shall cease to apply to such industry, in such area, and from such date, as may be specified in the said Notification and, thereupon the provisions of Section 7 of the Bombay General Clauses Act, 1904, shall apply to such cessor as if this Act had been repealed in relation to the said industry in such area by the Gujarat Act.
21. Nanavati has further submitted that the Government of Gujarat, vide Notification dated April 19, 2005 issued in the extraordinary, Gazette Part I-L published on April 20, 2005' granted exemption to the opponent No. 1 Company from the provisions of the Act pursuant to the powers conferred upon the State Government under Section 2(6) of the said Act. However, the pending proceedings are to be governed under the BIR Act.
22. Nanavati has further submitted that Division Bench of this Court vide order dated June 28, 2006 in Special Civil Application No. '. 11864/2003 passed an order on the basis of the composite settlement dated June 27, 2006 and modified the award passed by the Industrial Court, Ahmedabad and the petition was allowed to the said extent. Similarly, another. Division Bench of this Court passed an order dated July 12, 2006 in Letters Patent Appeal No. 538/2002 on the basis of the composite settlement dated June 27,2006 and modified the award passed by the Industrial Court, Ahmedabad in Reference (IC) No. 5/1993 and review application (IC) No. 61/1999. and the order passed by this Court in Special Civil Application No. 4758/1999.
23. Nanavati has further submitted that the applicant Union had never appeared in the present proceeding in the past and as per the settled legal position, the applicant Union has no locus standi to represent the case of the employees when they are represented by the representative Union. He has relied on the decision of the Apex Court in the case of Shramik Uttarsh Sabha v. Raymond Woollen Mills Ltd. and Ors. wherein it is held that the interest of industrial peace and public national interest require the employer to deal with representative Union in matters concerning all or most of the employees. The applicant Union, therefore, cannot appear in any proceedings where the representative Union is a party to the proceedings and has raised an industrial dispute concerning the employees.
24. Nanavati has further submitted that the applicant Union is not a representative Union under the Act and once a representative Union under the Act has raised an industrial dispute and reference is made to the Industrial Court by the representative Union, neither any individual employee nor any other Union can act or appear in the said proceedings.
25. Nanavati has further submitted that the opponent No. 1 Company in view of the Notification dated April 19, 2005, has been exempted from the provisions of the BIR Act with effect from April 19, 2005, but in view of the provisions contained under Section 7 of the General Clauses Act, 1904, all the legal proceedings or remedies which might have been instituted, continued or enforced shall not be affected by the repeal. The pending proceedings like the present Letters Patent Appeal will, therefore, be governed by the provisions contained in the BIR Act and not under the provisions of the Industrial Disputes Act, 1947. In support of this contention, he relied on the Division Bench judgment of this Court in the case of Adambhai Hasanbhai and Ors. v. Adam Malka and Anr. 1967 (8) GLR 577 wherein it is held that Section 7 of the Bombay General Clauses Act not. merely protects such a vested right, but, protects any legal proceedings or remedy in respect of such vested right or incurred liability. This Section in terms says that, in the case of a pursuit of such legal proceeding or remedy, the proceeding or the remedy shall be continued as if repealing Act had not been passed. He has, therefore, submitted that the applicant Union cannot be permitted to be impleaded as a party -respondent in the Letters Patent Appeal proceedings in view of the Division Bench judgment of this Court since the applicant Union is not a representative Union under the BIR Act, as per the provisions contained under Section 7 of the General Clauses Act, 1904, the applicant Union will have no locus standi to represent the case of the employees when they are represented by the representative Union. He has, therefore, submitted that the present application deserves to be rejected with cost.
26. A.K. Clerk, learned advocate appearing for the opponent No. 2 Union has submitted that the opponent No. 2 Union is a Trade Union registered under the Trade Unions Act, 1926 and it is also a representative Union and approved Union for the concerned industry and for the concerned local area recognised and registered as such under the BIR Act, 1926. As a representative Union, the opponent No. 2 Union is a bargaining Agent on behalf of all the employees employed in the concerned industry in the concerned local area. He has further submitted that in view of the provisions contained in Section 3(32), 3(33), 27-A, 30, 32, 33 and 33A read with Sections 13 and 14 of the BIR Act, the representative Union has the sole and exclusive right to represent the employees employed in the concerned industry in the concerned local area. It is settled law that when the representative Union is appearing in any proceeding, no other individual employee or Union has any right to act or appear in the proceeding. He has relied on the decision of the Hon'ble Supreme Court in the case of Santuram Khudai v. Kimatrai Printers and Processors Pvt. Ltd. wherein it is held that under BIR Act, no other employee or Union has any right to appear or act in any proceeding in which the representative Union appears.
27. Clerk has further submitted that though the BIR Act ceased to apply to the opponent No. 1 Company, the provisions of BIR Act continue to apply to the pending proceedings between the opponent No. 1 Company and the opponent No. 2 Union and, therefore, the applicant Union is not entitled to be joined as parry to the present appeal.
28. Clerk has further submitted that the representation of the employees of the concerned industries in the concerned local area by the representative Union is one of the basic features of BIR Act and is not dependent on the number of employees affected by the dispute or whether such employees are the members of their representative Union or not and whether they are members of any other Union as alleged or otherwise. He has, therefore, submitted that as per the scheme of the BIR Act, there can be only one representative Union of all the employees employed in the concerned industry in the concerned local area and, therefore, the present application deserves to be dismissed.
29. Clerk has further submitted that there are about 4,000 employees of the opponent No. 1 Company. The opponent No. 2 Union is the representative Union under BIR Act. Merely because about 200 employees are members of the applicant Union, the applicant Union cannot ; be joined as a party in the pending proceedings under BIR Act before this Court. That the opponent No. 2 Union is a representative and approved Union has raised the present dispute before the Industrial Court and had made the Reference under Section 73-A of the BIR Act and thereafter all throughout represented the workers not only before the Industrial Court but before the Learned single Judge of this Court as well as before the Division Bench. The opponent No. 2 Union has also entered into a settlement with the opponent No. 1 Company and only at the stage when the settlement is about to be arrived at, the applicant Union has moved the present application to be joined as a party. He has, therefore, submitted that neither on facts nor in law, the applicant Union is entitled to be joined as a party - respondent in the pending Letters Patent Appeal. He has, therefore, submitted that the application must be rejected with cost.
30. After having heard learned advocates appearing for the respective parties and after having gone through the memo of Civil Application, affidavit-in-reply filed by the opponent Nos. 1 & 2 as well as the written submissions filed by the learned advocates on behalf of the respective parties and after having considered the relevant statutory provisions and case law on the subject, the issues which arose for Court's consideration are as to whether under the relevant provisions of BIR Act, when one representative Union is there in any industrial establishment, is it open for any individual member of that Union or any other Union to represent the case of the members of the Union? The other issue which arose for the Court's consideration is that after an amendment by the State Government in BIR Act, 1946 by way of an insertion of Sub-section (6) in Section 2 and after publication of Notification dated April 19, 2005, granting exemption to the opponent No. 1 Company from the provisions of the BIR Act, with a rider that provisions of Section 7 of the Bombay General Clauses Act, 1904 shall apply to such cessor as if the said BIR Act had been repealed in relation to the opponent No. 1 Company, whether, by virtue of this amendment as well as Notification, the opponent No. 1 Company is still governed by the provisions of BIR Act insofar as the pending proceedings are concerned? As far as the first issue is concerned, T.R. Mishra, learned advocate appearing for the applicant Union has fairly conceded that there is no dispute about the fact that under the BIR Act, once the representative Union is there in an establishment representing the case of its members, it is not open for any individual or another Union to represent the cases of its members. We, therefore, do not think it just and proper to discuss much about the first issue. Even otherwise, the law is well settled so far as this issue is concerned. As observed earlier, in the case of Shramik Uttarsh Sabha v. Raymond Woollen Mills Ltd. and Ors. (supra), the Hon'ble Supreme Court has clearly held that the interest of industrial peace and public national interest require the employer to deal with representative Union in matters concerning all or most of the employees. In the case of Santuram Khudai v. Kimatrai Printers and Processors Pvt. Ltd., (supra), the Hon'ble Supreme Court has held that under BIR Act, no other employee or Union has any right to appear or act in any proceeding in which the representative Union appears under the BIR Act.
31. Following these two judgments as well as recording the submission of Mishra on this issue, we hold that if BIR Act is applicable to the opponent No. 1 Company, so far as the pending proceedings are concerned, in that case, only the opponent No. 2 Union which is a representative Union has all rights to appear or act in these proceedings and no other employee or Union has any right.
32. So far as second issue is concerned, we have to see the effect of the amendment made in the Act by the State Legislation as well as the Notification issued which specifically makes a reference of Section 7 of the Bombay General Clauses Act. During the pendency of the present proceedings, the State Government amended the BIR Act whereby in Section 2, after Sub-section (5), the following has been added:
(6) The State Government may, by Notification in the Official Gazette, direct that the provisions of this Act shall cease to apply to such industry, in such area, and from such date, as may be specified in the said notification, and thereupon the provisions of Section 7 of the Bombay General Clauses Act, 1904, shall apply to such cessor as if this Act had then been repealed in relation to the said industry in such area by the Gujarat Act.
33. The State Government thereafter issued Notification dated April 19, 2005 in the extraordinary Gazette on April 20, 2005 granting exemption to the opponent No. l Company from the provisions of the Act pursuant to the powers conferred upon the State Government under Section 2(6) of the BIR Act. It is made clear that provisions of Section 7 of the Bombay General Clauses Act, 1904 shall apply to such cessor. Section 7 of the Bombay General Clauses Act, 1904 reads as under:
7. Where this Act, or any Bombay Act (or Gujarat Act) made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, than, unless a different intention appears, the repeal shall not:
a. revive anything not in force or existing at the time at which the repeal takes effect; or b. affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or c. affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or d. affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or e. affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
34. The issue regarding applicability of Section 7 of the Bombay General Clauses Act to the pending proceedings has come up before this Court in the case of Adambhai Hasanbhai and Ors. v. Adam Malka and Anr. 1967 (8) GLR 577 wherein it is held that Section 7 of the Bombay General Clauses Act not merely protects such a vested right, but, protects any legal proceedings or remedy in respect of such, vested right or incurred liability. This Section in terms says that, in the case of a pursuit of such legal proceeding or remedy, the proceeding or the remedy shall be continued as if repealing Act had not been passed. If we apply ratio of this judgment in the present case, there is no dispute about the fact that the proceedings are still pending before this Court. We are not in agreement with the submission of Mishra that the proceedings before this Court are not considered to be the pending proceedings and only the proceedings pending before the Labour Court and/or the Industrial Tribunal are considered to be pending proceedings. As a matter of fact, Special Civil Application filed by, the opponent No. 1 Company against the award of the Industrial Tribunal as well as the Letters Patent Appeal filed before us against the judgment and order of the Learned single Judge are also considered to be the pending proceedings as they are in continuation of the proceedings originally initiated by the opponent No. 2 Union before the Labour Court. Once the present proceedings are considered to be the pending proceedings and initially, the BIR Act was applicable to the opponent No. 1 Company and by virtue of which it is only the right of the opponent No. 2 Union which is a representative Union to represent the case of its members, it makes no difference even after cessor of the applicability of the BIR Act to the opponent No. 1 Company as the amendment itself makes the provision that the provisions of Section 7 of the Bombay General Clauses Act would apply to such cessor. Meaning thereby, the pending proceedings are protected and they are governed by the provisions contained in BIR Act. The Court is, therefore, of the view that so far as the present proceedings are concerned, it is only the opponent No. 2 Union which is a representative Union has a right to represent the case of its members and the applicant Union has no right whatsoever. It is true that under the Industrial Disputes Act, the applicant Union can certainly represent the case of its members so far as any fresh proceedings initiated against the opponent No. l Company, but, for the present proceedings which are pending, the applicant Union has no right to represent its members as they were also the members of the representative Union.
35. The last submission which is made by Mishra in his written submissions is that the present Letters Patent Appeal is not maintainable as it is filed against the judgment and order of the Learned single Judge of this Court passed under Article 227 of the Constitution of India. As far as this argument is concerned, it is worthwhile to note that the present Letters Patent Appeal was admitted long back i.e. in 1998 and that too after full-fledged arguments by both the sides. While admitting the appeal, the Court has passed a detailed order dealing with all the contentions raised by the respective parties. When the Letters Patent Appeal is admitted by more than 9 years back and that too after a detailed speaking order, it is not just and proper for the other Division Bench to sit over the judgment of earlier Bench and dismiss the appeal straightway on the ground of non-maintainability and that too without going into the merits of the matter. We, therefore, do not agree to the submission made by Mishra.
36. Considering the entire facts and circumstances of the case and having given our thoughtful consideration to all the relevant provisions and case law, we are of the view that the present applicant Union has no right to be joined as a party - respondent in the present Letters Patent Appeal.
37. We find no merits or substance in the present application and it is accordingly rejected. Rule discharged without any order as to costs.