Madhya Pradesh High Court
J.B. Mangharam Mazdoor Sangh Gwalior ... vs J.B. Mangharam Karmchari Union Thr. on 3 January, 2019
Equivalent citations: AIRONLINE 2019 MP 1524
Bench: Sanjay Yadav, Vivek Agarwal
1
WA-1626-2018
HIGH COURT OF MADHYA PRADESH : GWALIOR
DIVISION BENCH
PRESENT:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE VIVEK AGARWAL
WRIT APPEAL No.1626/2018
J.B. Mangharam Mazdoor Sangh
Versus
J.B. Mangharam Karamchari Union & Others.
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Shri K.N. Gupta, learned Senior Counsel with Shri
Alok Sharma, learned counsel for the appellant.
Shri Kuldeep Bhargava, learned counsel for the
respondents.
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Whether approved for reporting : Yes/No
JUDGMENT
(03/01/2019) Per Justice Sanjay Yadav This Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the 2 WA-1626-2018 order dated 25/10/2018 passed in Writ Petition No.2387/2016.
2. The Writ Petition took exception to order dated 21/03/2016 passed by Industrial Court, Gwalior, in an appeal under Section 22 of the Madhya Pradesh Industrial Relations Act, 1960(hereinafter referred as "1960 Act"); affirming the order dated 23/01/2016 passed by Registrar of Representative Union, acknowledging and certifying the Appellant as a Representative Union by allowing the application under Section 17 of 1960 Act, in place of existing Representative Union.
3. Relevant facts briefly are that J.B. Mangharam Foods Pvt. Ltd. is a biscuit and confectionery industries engaged in job work for Britannia and is having a manufacturing unit at Gole-Ka-Mandir, Gwalior (referred to as undertaking). That, the Appellant and Respondent No.1 are registered Trade Union under the Trade Union Act. The Appellant being registered on 11/02/2015. The Appellant filed an application on 11/05/2015 under Section 17 of 3 WA-1626-2018 1960 Act, for recognition as Representative Union in place of respondent No.1, allowed the application by order dated 23/01/2016.
4. The two-fold objections raised were that the application under Section 17 of 1960 Act, is not tenable as it does not confer with the stipulations contained in Sections 13, 14 and 17 of 1960 Act; and secondly, it did not muster large membership.
5. Aggrieved, respondent No.1 preferred an appeal under Section 22 of 1960 Act read with Section 16 of 1960 Act. The contentions raised in the appeal were that as on 11/05/2015, the Appellant-Union was not having larger number of membership. It was urged that out of 195 members who find mention in Form-E, 65 paid subscription on 12/02/2015; 23 paid their subscription on 13/02/2015 and 107 paid their subscription on 14/02/2015. It was also contended before Appellate Court that the procedure resorted to by the Registrar by casting of vote ( er) was contrary to the statutory stipulation to determine the larger membership.
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6. The Appellate Court negatived both the contentions while dwelling upon the aspect of the membership as on 11/12/2015, affirmed the finding by the Registrar as recorded on 31/10/2015. The Appellate Court observed:
"7- vf/kfu;e 1960 dh /kkjk 17 ds vuqlkj iath;d dks ;g foosdkf/kdkj izkIr gS fd mDr /kkjk ds rgr mlds lEk{k izLrqr vkosnu&i= ds fujkdj.k gsrq vf/kfu;e ds izko/kkuksa ds vuqlkj fu/kkZfjr izfdz;k dk ikyu djrs gq, og viuh larqf"V gsrq mfpr tkWp dh izfdz;k viuk ldrk gSA bl /kkjk ds rgr iath;d ;g lqfuf'pr~ djrk gS fd fuosnd ekU;rk gsrq /kkjk 14 esa of.kZr 'krksZa dh iwfrZ djrk gS vFkok ugha rFkk ;g Hkh ns[krk gS fd vkosnu fnukad ls 3 ekg iwoZ dh vof/k esa fuosnd dh lnL;rk izfrfuf/k la?k dh lnL;rk ls vf/kd gS vFkok ughaA ;g Hkh fu/kkZfjr djrk gS fd fuosnd /kkjk 13 ds vUrxZr izfrfuf/k la?k ?kksf"kr fd;s tkus dk ik= gS vFkok ughaA miyC/k nLrkostksa ls Li"V gS fd iath;d }kjk nksuksa i{kksa dks lquokbZ dk leqfpr volj nsdj fnukad 31- 10-15 ds vkns'k }kjk vihykFkhZ la?k dh vkifRr;ksa dks vk/kkjghu ekurs gq, vihykFkhZ la?k dk cgqer fl) gksuk ugha ik;k rFkk viuh larqf"V gsrq cgqer ds fu/kkZj.k ds fy;s HkkSfrd lR;kiu dh dk;Zokgh djus dk fu.kZ; fy;k x;kA"
7. The order dated 31/10/2015 passed by the Registrar is also on record which reflects the following findings:
^^5& vkosnd ;wfu;u ds vkosnu fnukad 11-05-2015 ds laca/k esa vukosnd ;wfu;u dh vkifRr fnukad 08-10- 2015 rFkk mDr vkifRr ds lanHkZ esa vkosnd ;wfu;u } kjk izLrqr fyf[kr dFku ¼izR;qRrj½ fnukad 19-10-2015 5 WA-1626-2018 dk ijh{k.k fd;k x;kA vukosnd ;wfu;u }kjk izLrqr vkifRr esa dgk x;k fd tks ts0ch0ea?kkjke etnwj la?k] Xokfy;j dk izfrfuf/k la?k gsrq vkosnu fof/klEer ugha gS] vkosnd la?k fcLdqV ,oa dUQsD'kujh m|ksx ds fy;s izfrfuf/k la?k ?kksf"kr fd;s tkus gsrq vko';d vgZrk ugha j[krk gSA vkosnd ;wfu;u }kjk vkosnu i= ds lkFk izi= **bZ** dk ifjf'k"V layXu fd;k gS ftlls Li"V gS fd vkosnd la?k dk vkosnu i= fujLr fd;s tkus ;ksX; gSA ts0ch0ea?kkjke deZpkjh ;wfu;u] Xokfy;j dh lnL;rk ts0ch0ea?kkjke etnwj la?k] Xokfy;j ls lnSo vf/kd jgh gS] bl lac/a k 221 lnL;ksa dh lnL;rk lwph izLrqr dh xbZA vukosnd la?k }kjk ;g Hkh dgk x;k fd ts0ch0ea?kkjke etnwj la?k] Xokfy;j }kjk twu 2015 esa voS/k gM+rky dks iksf"kr fd;k Fkk ftlds iz.ksrk buds inkf/kdkjh FksA 6& vkosnd ;wfu;u ts0ch0ea?kkjke etnwj la?k] Xokfy;j }kjk vukosnd ;wfu;u ls izkIr vkifRr;ksa ds laca/k esa fcUnqokj mRrj izLrqqr dj dgk fd ,e0ih0vkbZ0vkj0 ,DV]1960 dh /kkjk 17 ds rgr vkosnu fof/k lEer gS vkSj vkosnd la?k fcLdqV ,oa dUQsD'kujh m|ksx ds fy;s izfrfuf/k la?k dh leLr vgZrk;s j[krk gSA muds }kjk vkosnu i= ds lkFk izi= **bZ** dk ifjf'k"V ,e0ih0vkbZ0vkj0 ,DV]1960 ds izko/kkuksa ds vuq:i vko';d tkudkfj;ksa ds lkFk izLrqr fd;k gSA vkosnd la?k dh lnL;rk la?k ds xBu fnukad 02-10-2014 ls vukosnd la?k dh lnL;rk ls vf/kd gSA ts0ch0ea?kkjke etnwj la?k] Xokfy;j }kjk twu 2015 esa fdlh izdkj dh gM+rky dk vkogku ugha fd;k x;k u gh dksbZ gM+rky dh xbZ FkhA vr% vukosnd }kjk yxk;s x;s lHkh vkjksiks dks [kkfjt djrs gq, fcLdqV ,oa dUQsD'kujh m|ksx esa vkosnd la? k ts0ch0ea?kkjke etnwj] la?k] Xokfy;j dks EkkU;rk izkIr izfrfuf/k la?k ?kksf"kr djus dh dk;Zokgh dh tkosA 7& vkosnd ;wfu;u ts0ch0ea?kkjke etnwj] la?k] Xokfy;j }kjk e/;izn's k vkS|ksfxd laca/k vf/kfu;e] 1960 dh /kkjk 17 ds vUrxZr izfrfuf/k la?k dh ekU;rk gsrq izLrqr vkosnu i= rFkk vukosnd la?k }kjk izLrqr vkifRr;ksa ,oa blds lanHkZ esa vkosnd ;wfu;u dh vksj ls izLrqr izR;qRrj@dFku ,oa fu;r lquokbZ fnukad 19- 6 WA-1626-2018 10-2015 esa mifLFkr i{kksa ds dFku ds vk/kkj ij vukosnd la?k ts0ch0ea?kkjke deZpkjh ;wfu;u] Xokfy;j ¼izfrfuf/k la?k½ ds lnL;ksa dk cgqer fl) ugha gksrk gSA vukosnd ;wfu;u us tks vkifRr;kW izLrqr dh gS mudk Bksl vk/kkj ugha gksus ls izLrqr] vkifRr;kW fujLr dh tkrh gSA laLFkku ts0ch0ea?kkjke QwMl izk0 fyfeVsM] Xokfy;j esa Jfedksa dk cgqer fdl laxBu ds lkFk gS] vkosnd ;wfu;u vFkok vukosnd ;wfu;u \ bldk fu/kkZj.k HkkSfrd lR;kiu }kjk gh fd;k tkuk mfpr izrhr gksrk gSA 8& vr,o e/;izns'k vkS|ksfxd lac/a k vf/kfu;e 1960 dh /kkjk 17 ds vUrxZr HkkSfrd lR;kiu ds fy;s frfFk 16 uoEcj]2015 fu/kkZfjr dh tkrh gSA fu;r frfFk esa ts0ch0ea?kkjke QwMjk izk0fyfeVsM Xokfy;j ds dkj[kkuk ifjlj vFkok VkbZe vkfQl esa HkkSfrd lR;kiu dh dk;Zokgh izkr% 9 cts izkjaHk dh tkdj lka;dky 5 cts lEkkIr dh tkosxhA HkkSfrd lR;kiu dh dk;Zokgh ds fy;s lgk;d Jek;qDr]Xokfy;j dks vf/kd`r fd;k tkrk gSA lgk;d Jek;qDr]Xokfy;j dks vko';d lg;ksx gsrq iath;d] O;kolkf;d@izfrfuf/k la?k dk;kZy; ds deZpkjh mifLFkr jgsaxsA lgk;d Jek;qDr] Xokfy;j bl gsrq fu;r frfFk dks dk;ZLFky ij mifLFkr jgsaxsA lgk;d Jek;qDRk] Xokfy;j dk;kZy;
ds vU; Je fujh{kd ,oa lgk;dks dh lgk;rk vko';drkuqlkj fu;r frfFk dks dk;ZLFky ij yh tk ldsxhA izc/a ku oxZ rFkk vkosnd ,oa vukosnd ;wfu;u ds izfrfuf/k;ksa ls lEidZ LFkkfir dj HkkSfrd lR;kiu dh dk;Zokgh fu"i{k rFkk lqpk: :i ls lEiUu djus gsrq dk;ZLFky dk fu/kkZj.k fd;k tk;sxkA"
8. Evidently, neither the Registrar, nor the Appellate Court examined the objection as to of having a substantial membership as on 11/05/2015 when an application under Section 17 of 1960 Act, was filed. This aspect will be dwelt upon later. 7
WA-1626-2018
9. As regard to the contention that the Registrar took recourse to voting in place of Physical Verification, the Appellate Court held:
^^8- HkkSfrd lR;kiu dh dk;Zokgh esa m|ksx esa fu;ksftr dqy 243 Jfedksa esa ls 196 Jfedksa }kjk Hkkx fy;k x;k gS ftuesa ls 193 Jfedksa dk leFkZu izfrvihykFkhZ dz02 ds i{k esa gksuk izekf.kr gqvk gS tofd 3 lnL;ksa dk leFkZu vihykFkhZ la?k dks gksuk fn[kkbZ nsrk gSA iath;d }kjk viukbZ xbZ HkkSfrd lR;kiu dh mDr dk;Zokgh esa dksbZ nks"k fn[kkbZ ugha nsrk gS cfYd ;g dk;Zokgh izfdz;k ds vuq:i gSA ,slh fLFkfr esa ;g ekuus esa dksbZ dfBukbZ ugha gS fd vihykFkhZ dks fu/kkZfjr vof/k gsrq lnL;rk dk cgqer izkIr ugha gqvkA vihykFkhZ }kjk iath;d ds lEk{k izLrqr vkifRr;ksa ds lkFk tks lnL;rk lwph izLrqr dh xbZ gS] mlesa mlds }kjk lnL;rk vof/k vizSy ls tqykbZ 2015 rd n'kkZbZ xbZ gS tcfd ekg Qjojh vkSj ekpZ 2015 dh lnL;rk dh dksbZ tkudkjh ugha nh xbZ gSA /kkjk 17 ds rgr lnL;rk dk fu/kkZj.k Qjojh ls vizSy 15 rd dh vof/k ds fy;s fd;k tkuk FkkA vihykFkhZ }kjk iath;d ds lEk{k ;g Lohdkj fd;k x;k gS fd mls la?k }kjk vf/kfu;e 1960 ds vUrxZr izfrfuf/k la?k }kjk la?k dh lnL;rk dk fu;rdkfyd ekfld fooj.k izi= ¼,Q½ izR;sd ekg dh 20 rkjh[k rd vko';d :i ls Hksts tkus dh tkudkjh u gksus ls ugha Hkstk tk ldk gSA mDr dkj.kksa ls iath;d O;olkfgd la?k }kjk vihykFkhZ la?k dh rqyuk esa izfrvihykFkhZ dzekad 2 la?k dh lnL;rk ds cgqer ds fu"d"kZ dks =qfViw.kZ ugha Bgjk;k tk ldrkA 9- iath;d us iz'uk/khu vkns'k ds iSjk 5 ds vafre Hkkx esa **er** 'kCn dk iz;ksx fd;k gSA ;gka **er** dk vFkZ oksfVax ls ugha gS cfYd mDr 'kCn dk rkRi;Z **leFkZu** ls gSA**
10. On a challenge in Writ Petition, learned Single Judge set-aside the order dated 23/01/2016 on the 8 WA-1626-2018 findings:
"A bare perusal of order passed on 23/1/16 by Registrar, Trade Union Bhopal while allowing the application of respondent union reveals that the so called inquiry conducted in the office of Assistant Labour Commissioner Gwalior was by conducting physical verification of 196 members of the applicant/respondent Union who were physically present. The said authority further perused the list of workers made available by the management who were working in the month of April-2015. Thereafter the order of Registrar reveals in it's penultimate paragraph that as against 193 votes received by the petitioner Trade Union, 190 votes were cast in favour of the applicant/respondent Trade Union which was found to be 79% of the workers employed in the industry. For ready reference and convenience relevant findings of the order dated 23/1/16 passed by Registrar Trade Union Bhopal are reproduced below:-
vr% itah;d] izfrfuf/k l?ak] e/;izns'k ds vkns'k fnukda 31-10- 2015 ds lanHkZ esa dk;kZy; lgk;d Jek;qDr] Xokfy;j esa dh xbZ HkkSfrd lR;kiu dh dk;Zokgh ftlesa 196 lnL; mifLFkr gq,] ds vuqlkj vkxkeh dk;Zokgh ij dksbZ jksd ugha gSA izca/ku }kjk ekg vizSy]2015 esa laLFkku esa dk;Zjr 243 deZpkfj;ksa@Jfedksa dh lwph miyC/k djkbZ xbZ Fkh ftlesa ls 196 lnL;ksa us mifLFkr jgdj HkSfrd lR;kiu dh dk;Zokgh esa Hkkx fy;k x;k Fkk ftlds lca/ak esa fLFkfr izn'kZd ifj.kke fuEuukuqlkj le{k gS%& 1 laLFkku esa fu;ksftr Jfedksa dh la[;k 243 2 mifLFkr dqy Jfed lnL;ksa dh la[;k 196 3 ts0ch0ea?kkjke deZpkjh ;qfu;u] Xokfy;j¼ia0Ø06103½ 003 4 ts0ch0e?akkjke etnjw l?ak] Xokfy;j¼ia-dz-06795½ 193 bl izdkj vkosnd lxa Bu ts0ch0ea?kkjke etnjw la?k] 9 WA-1626-2018 Xokfy;j ¼i0a Ø06795½ dks 193 ,oa vukonsd lxaBu ,oa orZeku izfrfuf/k la?k ts0ch0ea?kkjke deZpkjh ;qfu;u] Xokfy;j ¼ia0 Ø0 6103½ dks 03 er izkIr gSA ftlls Li"V gS fd vkosnd lxaBu ts0ch0e?akkjke etnjw l?ak] Xokfy;j ¼ia0Ø06795½ dks ls 190 er vf/kd izkIr gq, gSaA vr% lR;kiu dk ifj.kke vkosnd laxBu ds i{k esa tkrk gS tks fd laLFkku esa fu;ksaftr Jfedksa dk 79 izfr'kr gSA The earlier part of the aforesaid extracted portion of the impugned order Annexure P/8 reveals that physical verification was conducted of the workers who claimed to be members of the respondent Trade Union. However, the second part of the aforesaid extracted order elicits that 190 votes were received/cast in favour of respondent Trade Union as against only three votes received/cast in favour of petitioner Trade Union. This gives an impression that there was some element of election adopted by the Registrar Trade Union while conducting inquiry u/S. 17 (3) of 1960 Act for ascertaining whether the applicant/respondent Trade Union satisfies the statutory numerical prerequisite for being worthy substitution in place of petitioner Trade Union.
This Court thus has good reason to believe that instead of conducting a fact finding inquiry, the prohibited process of election by casting a vote was adopted by Registrar Trade Union to conduct the statutory inquiry contemplated u/S. 17 (3) of 1960 Act.
In view of the aforesaid, the extraneous consideration of adopting the prohibited mode of election by casting a vote/secret ballot was adopted, which renders the process of inquiry u/S. 17 (3) of 1960 Act vitiated 10 WA-1626-2018 in the eyes of law.
Consequently, this petition deserves to be and is allowed in the following terms:-
(i) Impugned order Annexure P/1 dated 21/3/16 passed in Appeal No.1/MPIR/2016 by Industrial Court, Gwalior Bench (Camp Bhopal) M.P. and the order of Registrar Trade Union dated 23/1/16 vide P/8 stand quashed.
(ii) Registrar Trade Union is directed to reconsider the application of respondent Trade Union filed u/S. 17 of 1960 Act in accordance with law by keeping in mind the statutory provisions and the case laws on the subject after hearing both the parties within an outer limit of three months from the date of receipt of copy of this order."
11. The order is assailed on the grounds that the writ Court carried the impression that there was some element of election by construing the word " er" as voting, by ignoring the finding in Paragraph 9 of the Appellate order. It is urged that respondent No.1 was also recognized in the same manner as the Appellant. Therefore, the respondents were estopped from raising an objection as to the manner, the verification was conducted by the Registrar. It is further contended that Section 17 of the 1960 Act, and Rule 17 of the Rules 1961, empower the Registrar to 11 WA-1626-2018 conduct the fact finding enquiry but no particular procedure is prescribed by the legislature. It was thus within the prerogative of the Registrar to ascertain the status of majority of union for granting the recognition as Representative Union, in that event, it is urged that unless the procedure is held to be arbitrary, the judicial interference is not narrated. It is urged that learned Single Judge thus grossly erred in interfering with the Appellate order.
12. The respondent No.1, besides supporting the order passed in Writ Petition, also contends that since the matter has been recommended to the Registrar, the Registrar be directed to consider the issue as to whether on 12/05/2015, the Appellant was having the membership required for moving application under Section 17 of 1960 Act.
13. Considered rival contentions. Perused the record.
14. Section 17 of 1960 Act, makes provision regarding recognition of another union in place of existing Representative Union. Sub-section (1) 12 WA-1626-2018 whereof envisages that if at any time any union makes an application to the Registrar for being recognised in place of the union already recognised as the Representative Union for an Industry in a local area on the ground that [it has large membership of the employees employed in such industry] the Registrar shall call upon the Representative Union by a notice in writing accompanied by a copy of the application to show cause within one month of the receipt of such notice why the applicant union should not be recognised in its place. An application made under this sub-section shall be accompanied by such fee as may be prescribed.
15. That Sub-section(3) of Section 17 of 1960 Act, stipulates the procedure,:
"(3) If, on the expiry of the period of notice under sub-section (1), and after holding such inquiry as may be prescribed, the Registrar is satisfied that the applicant union complies with the conditions of recognition specified in section 14 and that [its membership was, during the whole of the period of three months immediately preceding the date of the application under this section, larger than the membership of the representative union] he shall, 13 WA-1626-2018 subject to the provisions of Section 13, recognise the applicant union as the Representative Union for such industry in a local area.
16. Sections 13 and 14 of the Act 1960, lays down conditions of recognition. It stipulates:
"13. Application for recognition as a Representative Union. - (1) Any union may apply in the prescribed form to the Registrar for recognition as a Representative Union in respect of any industry in a local area :
[Provided that the Registrar shall not entertain an application by a union, whose application for recognition as a representative union has been rejected by him unless a period of one year has elapsed from the date of such rejection.] (2) On receipt of such application and on payment of the prescribed fee the Registrar shall hold an enquiry in such manner as may be prescribed and if he is satisfied that such union fulfills the conditions necessary for recognition specified in Section 14, he shall enter the name of such union in the register maintained under Section 15 and shall issue a certificate of recognition in such form as may be prescribed :
Provided that-
[(i) where two or more unions fulfilling the conditions necessary for recognition apply for recognition in respect of the same industry in any local area in the same calendar month, the union having the largest membership of employees employed in 14 WA-1626-2018 the industry shall alone be recognised and no applications for recognition received in any subsequent calendar month shall be considered, until the applications received first in the earlier calendar month is disposed of by the Registrar.]
(ii) the Registrar shall not recognise any union if he is satisfied for reasons to be recorded in writing that the application for recognition is not made bonafide in the interests of employees but is made in the interests of employer;
(iii) the Registrar shall not recognise any union if at any time within six months immediately preceding the date of the application for recognition or thereafter the union has instigated, aided or assisted the continuation of a strike or stoppage which has been held or declared to be illegal.
14. Conditions of recognition. - No union shall be recognised as a Representative Union under this Act, unless-
(i) membership of the union is open to every employee employed in the industry in the local area;
[(ii) the union has for the whole of the period of three months immediately preceding the month in which the application for recognition is made under Section 13, a membership of not less than twenty five per centum of the total number of employees employed in the industry in such local area.] [(iii) the union has undertaken by a special resolution that it shall not sponser, declare or support a strike until a ballot is taken and not less than 15 WA-1626-2018 two-thirds of the total members of the union vote in favour of the strike.]"
17. The procedure prescribed is under Rule 13 and Rule 17 of 1961 Rules, it stipulates:
"13. (1) On receipt of an application for recognition from a union under sub- section (1) of Section 13 and on payment of a fee of Rs. 5, prescribed in Rule 11, the Registrar shall cause a notice to be put up on the premises of all the undertakings in the industries of the local area concerned at such conspicuous place or places, as he may deem fit, inviting objections to the recognition of the union as a representative union within a period to be specified in the notice, which shall not be less than 15 days.
(2) If no objection is received within the period specified under sub-rule (1) the Registrar may, before passing any order on the application and taking any action sub-section (2) of Section 13, inquire and call for further information from the union for the purpose of ascertaining whether the union is entitled to recognition under the said sub-section.
(3) If any objection is received from any person within the period specified in the notice referred to in sub-rule (1) the Registrar shall fix the date, time and place for hearing the objection and give notice of such date, time and place to the applicant and the objector.
On the date so fixed or any other date to which the enquiry may be adjourned, the Registrar shall hear the parties and proceed to enquire into the 16 WA-1626-2018 objections which any person has stated pursuant to the notice given under sub-rule (1) and into the claims of the union for being recognised as representative union under the Act. (4) On hearing the applicant union and the objector and if necessary after collecting any relevant information and/or recording any evidence, the Registrar is satisfied that the applicant union fulfills and the conditions necessary for recognition he shall recognize and register such union in the manner prescribed in Section 15. (5) The result of the enquiry made under sub-rule (2) or (3) shall be communicated to the applicant union as soon as may be practicable.
17. (1) On the expiry of the period of notice under sub-section (1) of Section 17, the Registrar shall call for necessary information from the union making the application for recognition under sub-section (1) of the said section and the representative union in Form E and may call for such registers and other documents as he may consider necessary in this behalf. (2) On receipt of the information called for under sub-rule (1) and after giving both the parties an opportunity of being heard, the Registrar shall pass orders accepting or rejecting the application giving reasons therefor. (3) The Registrar shall communicate his decision to the applicant union and also to the representative union as soon as practicable."
18. The question is when no specific procedure to 17 WA-1626-2018 identify the members is laid down to ascertain their Physical Verification, what measure should be adhered to by the Registrar. In this realm, there are catena of decisions:
19. In Automobile Products of India Employees' Union vs. Association of Engineering Workers, Bombay and Others:[(1990) 2 SCC 444], it is held:
"19. As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant- Union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-Union seeks recognition for itself by displacing the existing recognised union, the applicant-Union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application, but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superiority in it over a continuous specified period. What should further be not lost sight of is the paramount 18 WA-1626-2018 fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act.
20. The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act. The court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions 19 WA-1626-2018 continuously over the specified period, the overlapping membership being ignored.
21. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act."
20. In Maharashtra General Kamgar Union vs Majodoor Congress:[1983 Lab IC 1034], it is held by the Division Bench of Bombay High Court:
"The order granting recognition or cancellation of such recognition has a number of effects more particularly pertaining to the rights of the concerned unions. The recognition of a union granted certain privileges while cancellation of that recognition would nullify these privileges. Thus, an enquiry under section 13 of the Act of 1971 may result in affecting the rights of a recognized Union. Such an inquiry would at least be a quasi judicial enquiry and it will be necessary to decide as to whether in the absence of any specific provisions of secret ballot, it would be possible for the enquiring 20 WA-1626-2018 authority to decide matters in controversy in such quasi judicial enquiry with the help of secret ballot. Of course, the position would be different if the legislature makes a specific provision that a particular controversy can be decided by a secret ballot. But, so long as that provision is not there, one will have to take into account as to what is the primary use of a secret ballot. In ordinary parlance, a secret ballot is method of voting. This is a process of an election while the enquiry contemplated by Section 13 of the Act, 1971 is a fact-finding process. In our opinion, a secret ballot cannot be used as a process where a quasi- judicial enquiry regarding the finding of certain facts is contemplated."
21. That, while dwelling on the aspect as to which of the two systems viz(i) Check off System or Physical Verification System and (ii) Secret Ballot System, a Single Bench in Moil Janshakti Mazdoor Sangh vs. Union of India [(Writ Petition No.9002/2010(S) and Writ Petition No.860/2012(S)] presided over by one of us (Sanjay Yadav, J.) in its order on 19/06/2012 while relying on the formation by Second National Commission of Labour 2002 observed:
27. There exists two mode of system adopted in various Central Industries for recognition of a representative Union enjoying the bargaining power, 21 WA-1626-2018 i.e., (i) Check off System or Physical Verification System and (ii) secret ballot system. The debate as to which is the best method for recognizing the representative Union, has been in vogue since the multiunionism has emerged in the industrial concern. And has acquired a prominent place even before the National Labour Commission.
28. Arguments in favour and against each of the two system was formulated by the Second National Commission of Labour, 2002, in the following terms:
"6.68. To put the arguments briefly, those who support the secret ballot urge; (1) that the system of secret ballot is what is used to elect a representative to the legislature or Parliament; (2) that it is a system that assures a democratic choice; (3) that the secrecy prescribed in it provides protection to the worker, from harassment by the management or other unions; and (4) that there is no better method to verify support. Those who support the check off system argue: (i) that the check off or authorization to deduct union subscriptions from wages clearly shows that the respective strength of unions:
(ii) that unlike the secret ballot which only shows the preference at the moment, the check off system shows the continued support for the 22 WA-1626-2018 unions over a long enough period of time; (iii) that since the negotiating agent has to represent workers over a period of time till the next negotiations fall due, membership of the union is a far better and more reliable index than a secret ballot (which is more like a referendum); (iv) that the check off system promotes unionisation; (v) that the check off system does not involve any special expenditure for verification, whereas the administrative cost of a secret ballot, especially when it has to be held in a multi unit undertaking goes to crores of rupees and the development of a formidable number of polling officers; (vi) that this raises the question of the source from which Page 0010 the money to defray the expenditure on the secret ballot should come, whether it should be from the management or workers or the Government.
The management is reluctant, and some times, unable to find such a large sum of money; the Trade Union does not have the resources, and the Government too is unwilling to find the money from the exchequer; (vii) that the campaign for a secret ballot disturbs the atmosphere, generates intense feelings of rivalry and acrimony and sometimes violent interludes in establishments which 23 WA-1626-2018 adversely affect and disrupt the tenor and volume of work done etc; and (viii) that it takes many days for the aftermath of the campaign to settle down.
29. The Commission after taking note of arguments for and against the two systems for recognizing a representative trade Union and after analysing the same opined in paragraph 6.69, 6.70, 6.71 and 6.72 as under-
"6.69 The Commission carefully considered the advantages and disadvantages of the relevant options. In dealing with this issue, we had to keep in view our belief that collective negotiations require a strong trade union movement which, in its turn, demands an increasing degree of unionisation. Any formula which militates against increasing unionisation should, therefore, ab initio be avoided. Secret ballot as a method of identifying the negotiating agent raises the following questions : - Should the electorate for choosing the negotiating agent be the entire corpus of workers in the establishment/industry/region or should it be limited only to members of registered trade unions? If it is to be the latter, then in a situation where the total unionised strength is less than 50% of the work force, and this is the average 24 WA-1626-2018 scenario in our country, then a minority will be negotiating for the entire establishment/industry/region; on the other hand, if the entire workforce were to participate, then it I argues this may;
weaken the urge or inducement for nonunionised workers to become members of one or other of the trade unions.
6.70. Also,. secret ballot even on a restricted basis is logistically and financially a difficult process in industries like railways, banks, post offices, coalmines and other undertakings operating in a number of states. It has been shown that the expenses run into crores of rupees. For instance, we are informed that in the case of the Food Corporation of India (F.C.I.) the identification of the negotiating agent through secret ballot amongst 50,500 employees undertaken during 2002 involved an expenditure of more than 50 lakh rupees, and the deployment of 3,000 returning officers and polling staff.
6.71. A check off system has the advantage of ascertaining the relative strengths of trade unions based on continuing loyalty reflected by the regular payment of union subscription, 25 WA-1626-2018 even if such subscriptions are deducted from the wages as permitted under the Payment of Wages Act, 1936. Also, the check off system by and large, avoids the incidence of dual membership under which, for a variety of reasons, a worker may become member of more than one union. Given the low level of unionisation in India, neither the check off system nor the secret ballot confined to members of registered unions is like to throw up a negotiating agent which commands the support of the majority of workers, excepting in industries and establishments where the degree of unionisation is very high. The argument advanced against the check off system is that Page 0011 it exposes the loyalty of the worker, and this may make him vulnerable to victimisation by the management or persecution by members of other unions. We feel that this argument does not have much force today, when conscientisation and legal rights have more or less done away with the fear that workers had in the early days of trade unionism in the country. Today, it is commonly accepted even by employers that workers have the freedom to join trade unions of their choice. There may be exceptional cases of 26 WA-1626-2018 victimisation and vendetta. But they are exceptions, and not the vogue.
6.72. We have given consideration to all these arguments and come to the conclusion that the check off system should be the general pattern, and wherever there is legitimate apprehension that the system may not achieve the purpose of verification or may create the possibility of victimisation, it should be open to unions to petition the Labour Relations Commission to determine the method that should be adopted in a particular instance.
30. It will therefore, be clear from the recommendation that the physical verification has been preferred to that of Secret Ballot System. Reasons, as obvious are not for to be fetched. In an election by a Secret Ballot, no doubt the identity is not disclosed; however, in absence of any mechanism of ensuring a compulsory voting and the fact that the majority is drawn out on the basis of a voting on a day does not ensure that the Union which has been voted in actually enjoys the majority support in terms of Unionism and not individual manner. It is the collective whole and not the individual being which is important in respect of bargaining agent in an industrial concern wherein the well being of workmen, who are at the receiving end, which is of greater concern. It is 27 WA-1626-2018 the collective representation on the basis of affirmed membership which reflects the actual strength of the Union."
22. In Air India Employees Guild vs. Air India Ltd. & Ors.[(2007) II-LLJ 217]. Full Bench of High Court of Bombay, observed:
"17. On a consideration of the provisions and the judgments, what follows is that secret ballot would only indicate preference of an individual employee on the date the secret ballot is held for a particular union, even if he be not its member. It cannot be a method for verification of membership of the union in terms of the Code of Discipline for the particular period of verification of membership. The method of secret ballot for ascertaining majority of membership is therefore, derogatory to the Code of Discipline."
23. Taking into consideration the nature of enquiry contemplated under Section 17(3) read with Section 13 and Section 14 of 1960 Act, it goes without saying that the verification for determination for larger number of membership is not by secret ballot but by Physical Verification. The precise procedure followed by the Registrar is spelt out in his order and is reproduced by learned Single Judge, as below: 28
WA-1626-2018 ^^vr% lR;kiu dk ifj.kke vkosnd laxBu ds i{k esa tkrk gS tks fd laLFkku esa fu;ksaftr Jfedksa dk 79 izfr'kr gS A**"
24. The expression "er" in Devnagri has different connotations. It is a masculine gender and would mean "(i) opinion, view; (ii) sect; (iii) creed, faith; (iv) vote, purpose, wish, intent; (v) knowledge, doctrine, belief."(Please see: Allied Chambers: Transliterated----
Hindi----English Dictionary). The principle of natural justice is not only confined to passing a reasoned order, but it requires that order besides being speaking must also bear clarity, so that the same is not subjected multiple interpretation. In this context, reference can be had of the decision in Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and Others:[(1991) 2 SCC 716], wherein it is held:
"20. Unless the rule expressly or by necessary implications, excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but at the least, the record should disclose reasons. It may not be 29 WA-1626-2018 like a judgment. But the reasons may be precise. In S.N. Mukherjee v. Union of India, J.T. 1990 (3) SC 630 the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the judgment to reiterate them once over and at page 614 in para 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. In para 36 on pp. 612-13 it was further held that recording of reasons ... excludes chances of arbitrariness and ensure a degree of fairness in the process of decision making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. "It is not required that the reasons should be as elaborate as in the decision of a Court of law." The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.30
WA-1626-2018
21. Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. It also excludes the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion/decision reached. The order when it affects the right of a citizen or a person, irrespective of the fact, whether it is quasi-judicial or administrative fair play requires recording of germane and relevant precise reasons. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the Appellate jurisdiction of this Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."
25. In the case at hand, the Registrar while recording a finding that 196 members participated in Physical Verification (iz`ca/ku }kjk ekg vizSy] 2015 esa laLFkku esa dk;Zjr 243 deZpkfj;ksa@Jfedksa dh lwph miyC/k djkbZ xbZ Fkh ftlesa ls 196 lnL;ksa us mifLFkr jgdj HkSfrd lR;kiu dh dk;Zokgh esa Hkkx fy;k x;k Fkk). After participation, the Registrar records 31 WA-1626-2018 about "er" without specifying whether the "er" was gathered by Physical Verification or through casting of vote. When the expression "er izkIr gS" is employed, it, as understoodby a layman would mean relieving the vote and not that they "opined". There being no clarity in the order dated 23/01/2016 which is rightly construed to be so by learned Single Judge.
26. Furthermore, Clause (ii) of Section 14 of 1960 Act, stipulates that, no union shall be recognized as Representative Union under the Act of 1960, unless the union has for the whole of the period of three months immediately preceding the month in which the application for recognition is made under Section 13, a membership of not less than 25% of the total number of employees employed in the industry in such local area. In the case at hand, the Appellant- Union was registered as Trade Union on 11/02/2015. That 65 members gave their subscription on 12/02/2015, 23 paid their subscription on 13/02/2015; and 107 on 14/02/2015. It was thus incumbent upon the Registrar to have addressed the issue as to 32 WA-1626-2018 whether the application under Section 17 filed on 11/05/2015 was tenable. The matter having been remanded, incumbent it would upon the Registrar to examine aforesaid aspect qua Section 14(ii) of 1960 Act.
27. The Appeal is disposed of finally in above terms.
28. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pwn*
PAWAN
KUMAR
2019.01.04
13:35:58
+05'30'