Bombay High Court
Kalmeshwar Girni Kamgar Sanghatana vs Assistant Registrar Of Unions And ... on 24 July, 1992
Equivalent citations: (1992)94BOMLR384, (1993)ILLJ576BOM, 1992(2)MHLJ1521
JUDGMENT
1. The petitioner Kalmeshwar Girni Kamgar Sanghatana a registered Trade Union impugns by this petition the communication dated February 8, 1985 whereby the respondent No. 2, the Textile Mill, was informed by the Assistant Registrar of Unions that the respondent No. 3, the Rashtriya Mill Mazdoor Sangh, Kalmeshwar, has been registered as a representative union and entered in the approved list of unions under the Bombay Industrial Relations Act, 1946 in Cotton Textile Industry in the local area of Kalmeshwar Taluka.
2. The respondent No. 3 the Rashtriya Mill Mazdoor Sangh applied for its registration as a representative union under Section 13(1) of the Bombay Industrial Relations Act (hereinafter referred to as : "the BIR Act") on September 25, 1984. In the absence of a representative union, five elected representatives were functioning in the industry. At the relevant time the five elected representatives were respondent Nos. 6 to 10. On receipt of the application, the respondent No. 1 - Assistant Registrar of Unions scrutinized the same and upon being satisfied that the respondent No. 3 fulfills the requirements of the Act and particularly the requirement of having membership of not less then twenty five percent of the employees working in the textile industry in the local area of Kalmeshwar Taluka for preceding three months from the date of application, granted registration as a representative union under the BIR Act. No other union including the petitioner union had simultaneously applied in the same month, or even later on, seeking registration as a representative union.
3. The communication is challenged mainly on the ground that the respondent No. 1 has failed to follow the mandatory provisions of the Act and the Rules framed thereunder. The attack was mainly on non-compliance of Rule 28A of the Bombay Industrial Relations Rules (hereinafter referred to as "the Rules"). According to the petitioner, it was incumbent upon the respondent No. 1 to hold an enquiry in the manner provided and after issuing fifteen days' notice to other union or unions functioning in that industry. Not having done so, the grant of registration as a representative union to the respondent No. 3, the Rashtriya Mill Mazdoor Sangh, was invalid and illegal. In any event, it was urged that principles of natural justice were violated by not giving an opportunity to the petitioner and other representative union to contest the application.
4. The respondent No. 3 justified the action of respondent No. 1 by contesting that Rule 28A is not attracted in the present case. There was no other application filed in the very same month so as to attract the provisions of Rules 28A of the Rules. It was also contended that the respondent No. 1 followed the procedure laid down in Section 14 of the BIR Act and granted the registration to the respondent No. 3 being satisfied that all the requirements are fulfilled.
5. The controversy lies in a narrow compass whether it is incumbent upon the Registrar to issue notices to other unions before holding an inquiry contemplated by Section 14 of the Act ?
6. It is necessary first to have a look at the relevant provisions of the Act and thereafter Rule 28A for answering the abovesaid question. Section 13(1) reads as under :
"13(1) Any union which has for the whole of the period of three calendar months immediately preceding the calendar month in which it so applies under this Section a membership of not less than twenty-five per cent of the total number of employees employed in any industry in any local area may apply in the prescribed form to the Registrar for registration as a representative union for such industry in such local area".
The section contemplates that a union seeking the status of a representative character must apply if the membership of the union is not less than twenty-five per cent of the total number of employees employed in the industry in three calendar months preceding the month in which the application is made. The manner in which the application is to be dealt with is given in Section 14 which reads as follows :
"14. On receipt of an application from a union for registration under Section 13 and on payment of the fee prescribed, the Registrar shall, if after holding such inquiry as he deems fit he comes to the conclusion that the conditions requisite for registration specified in the said section are satisfied and that the union is not otherwise disqualified for registration, enter the name of the union in the appropriate register maintained under Section 12 and issue a certificate of registration in such form as may be prescribed".
The Registrar is empowered under this section to make an enquiry in the manner he deems fit and if he comes to the conclusion that the union fulfils the requirement of membership stipulated in Section 13, and the union applying is not otherwise disqualified, the name of the union is entered in the register maintained for the purpose and a certificate of registration must follow. The procedure which the Registrar must adopt while making the enquiry is left to his sole discretion.
7. Coming to the Rules, only Rule 28A is relied upon by the petitioner, the relevant part of which is extracted below :
"28A(1) For ascertaining the membership of unions for the purposes of the provisions of Sections 13, 16, 17 or 23, the Registrar shall hold an inquiry in the manner hereafter provided........
(2) The Registrar shall fix a date for holding an inquiry for ascertaining such membership and shall give fifteen days' notice thereof to the union or unions concerned.
(3) .... ..... ....."
Sub-rule (2) of Rule 28A was much emphasised on behalf of the petitioners contending that it is this rule which makes it obligatory upon the Registrar to issue fifteen days' notice before holding an enquiry to the union or unions concerned. Sub-rule (2) follows sub-rule (1) under which the Registrar is empowered to hold enquiry. That enquiry postulates ascertaining of membership of the unions. The opening words are crucial. It envisages two or more unions in the contest with each other in so far as the membership is concerned. Such contingency may arise when a union having majority members is to be selected. Such a position would emerge only if the provisions of Sections 13, 16, 17 and 23 are perused. Membership of the unions requires ascertainment. Section 13 by itself is innocuous, but read with the proviso thirdly of Section 14 of the Act makes a difference. The proviso "Thirdly' is extracted below :
"Thirdly, that where two or more unions fulfilling the conditions necessary for registration apply for registration in respect of the same industry in any local area in the same calendar month subject to the provisions of the second proviso, the union upon having the largest membership of employees employed in the industry for a period of three months immediately preceding the calendar month in which they apply shall be registered and no application for registration received in any subsequent calendar month shall be considered, until the applications received first in the same calendar month are disposed of by the Registrar".
When two or more unions come in the field seeking registration of being a representative union, in such an eventuality the union having largest membership of employees employed in the industry in three months immediately preceding the month in which they apply, has to be preferred. There is, however, one condition which must be followed and that condition is that the unions who come in the field must apply for registration in the same month. Any application received in any subsequent calendar month will be of no use. Therefore, Section 13 referred to in Rule 28A is with reference to the Proviso Thirdly of Section 14. That explains the opening words of Rule 28A, that is, "for ascertaining the membership of the unions". Such is not the position when solitary application is being considered.
8. Section 16, 17 and 23 are referred to in Rule 28A. It is necessary to consider even this provision in order to settle the controversy one by one. Section 16(1) reads thus :
"16(1) If at any time any union (hereinafter in this section referred to as "applicant union") makes an application to the Registrar for being registered in place of the union already registered (hereinafter in this section referred to as "registered union") for an industry, in a local area, on the ground that it has a larger membership of employees employed in such industry the Registrar shall if a period of two years has elapsed since the date of registration of the registered union, call upon the registered union by a notice in writing to show cause within thirty days of the receipt of such notice why the applicant union should not be registered in its place. An application made under this sub-section shall be accompanied by such fee as may be prescribed :
Provided that the Registrar shall not entertain any application for registration of a union, unless period of one year has elapsed since the date of disposal of the previous application of the union."
When another union comes forward for registration in place of the one already existing on the ground that it has larger membership of the employees employed in the industry, the Registrar has to ascertain the membership of the two unions before taking any step forward. Similar would be the position where the union applies or re-registeration under Section 17 of the Act. According to that section the union whose registration is cancelled for the reason that it was registered under a mistake or the membership of the union has for a continuous period of three months fallen below the minimum required under Section 13 for its registration, can apply after the lapse of period of three months for re-registration. Other union or unions are to be noticed in order to avoid repetition of a mistake or to see that there is an actual increase in membership after it had come down. It is possible that the fall in membership can be due to inflow of membership into another rival union. In order to correctly ascertain the membership at the time of re-registration, Rule 2A appears to have been applied.
9. Section 23 deals with Approved Unions. Sub-section (1) envisages an application being made by a union for being entered in the approved list. Enquiry is also contemplated under this sub-section. On being satisfied that the union has made rules and those rules are being observed the Registrar may enter such union in the list. Here again proviso (b) to Section 23(1) is relevant. It contemplates contest between two unions. Where two or more unions fulfilling the conditions necessary for being entered in the approved list apply in respect of the same industry in any local area in the same calendar month, the union having the largest membership of employees in the industry in calendar month immediately preceding the calendar month in which they apply, shall be entered in the approved list. It is with reference to this proviso that Rule 28A is made applicable.
10. Where, therefore, a solitary union applies under Section 13(1) for being registered as a representative union, the Registrar has only to ascertain that the union applying satisfies the conditions laid down in that section. The procedure is prescribed in Section 14 itself. It is in this background that Rule 28-A of the Rules has excluded Section 14 from its coverage. Therefore, I am of the firm opinion that Rule 28A is not attracted in the present case. Therefore, there is no necessity for respondent No. 1 to issue notices to the other union or unions. Non-issuance of notice to the petitioner or even other unions is of little consequence.
11. The other contention of the petitioner that non-issuance of notice to them as well as other unions deprived them of an opportunity to contest the application filed by the respondent No. 3 and thereby the principles of natural justice stand violated, is also without any merits. If the statute has itself laid down a particular scheme, it must be followed unless the very scheme is challenged. The Legislature seems to have visualised the repercussion which may follow if other union or unions were to participate in an enquiry also under Section 14 of the Act. It would hence be proper to follow the scheme as intended by the Legislature.
12. The net result of the discussion is that the petition is devoid of any merits and must be rejected, but in the circumstances, without any order as to costs.